■^iii^ 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A  SELECTION  OF  CASES 


ON 


DOMESTIC  RELATIONS  AND  THE 
LAW  OF  PERSONS 


BY 

EDWIN  H.  WOODRUFF 

raOFBSSOR  OF  LAW  IN  THE  COLLEGE  OF  LAW,   CORNELL  UNIVKRSnT 


SECOND  EDITION,  ENLARGED 


NEW  YORK 
BAKER,  VOORHIS  &  COMPANY 

1905 


T 


Copyright,  1897, 
By  EDWIN   H.   WOODRUFF. 


COPYRICIHT,     1905, 

By  EDWIN  H.  WOODRUFF. 


Vr  BSD  -  P  A  RSONS     PRINTING     COMPANY 

PUNTSRS   AND   ELECTROTVPBRS 

ALBANV,  N.  V. 


Prefatory  Note  to  the  Second  Edition. 


This  collection,  in  the  present  edition,  has  been  en- 
larged by  a  group  of  cases  on  the  conflict  of  jurisdiction 
in  divorce  actions;  by  other  cases  which,  with  three  ex- 
ceptions, have  been  decided  since  the  first  edition  was 
published;  and  by  additional  notes  and  references. 

E.  H.  W.' 
AnguU  15,  1905. 


671016 


'.S:^:ii}&  -'Jfii  ;ut2A.    :^r;P^i:l.^K^Vf^• 


TABLE  OF  CONTENTS. 


PART   I. 

MARRIAGE. 
CHAPTER  I. 

CONTRACT  TO   MARRY. BREACH  OF  PROMISI. 

MOB 

Proof  of  contract i 

Illegal  consideration 5 

Reality  of  consent ,        .14 

Survival  of  action  for  breach  of  promise  .        .        .        .        ao 


CHAPTER  II. 

CONTRACT   OF   MARRIAOB. 

Marriage  as  a  contract .  304 

Common-law  marriage. — Requisites  of  form    ,         ,        ,  ,        ,23 

Capacity  of  parties. 

Non-age •         .        .         ,         ,  .37 

Mental  incapacity         .         .         ...         ,        ,  ,        44 

Physical  incapacity 49 

Consanguinity        .....,,,,  49 

Prior  marriage .,         ,  .51 

Reality  of  consent  , 

Fraud      .....       .4        .        .        .         .  .         61 

Duress ,         ,  .73 

Marriage  in  jest ,  ,         76 

M 


VI 


TAB1.1-;   Ol     CON  IK  NTS. 


CHAPTER  III. 


HUSBAND    AND    WIFE. 

VVrfe's  contracts 
With  third  persons 

Ante-nuptial  ..... 

Post-nuptial  '     .li 

In  general         ...... 

For  necessaries  .... 

With  husband 

Ante-nuptial      ...... 

Post-nuptial  .         ,         ;         . 

Wife's  property 
Personal  property- 
Chattels  personal 

In  general      ...... 

Paraphern^li^.   .     ^  . .       ,         ... 
.,.,.      Choses  in  action     .         .         .         .         , 

Chattels  real 

Real  property 

In  general  ...... 

Dower 

Nature  of  inchoate  right 

Seizin     ....... 

Marriage  ..... 

Provision  in  lieu  of  dower 
Estate  by  the  curtesy    '■    -K'  >   '■  i-' ■    . 
Estates  by  the  entirety       .         .         .         . 

Gifts  and  conveyances  between  husband  and 
Devises  and  bequests  by  the  wife 
•  Wife's  earnings         ..... 

Wife's  separate  estate 

In  equity 

Statutory       

■  'Wife's  equity  to  a  settlement 
Wife  as  trustee  ..... 

Subjection  of  the  wife's  person 

Domicile         ....... 

Chastisement  or  restraint  .         .         . 

Husband  and  wife  in  the  law  of  tort 
Torts  by  the  wife 

Ante-nuptial         ...... 

Post-nuptial  .         .         .         . 


-i  J 


/\ 


wife 


PAGM 

88 

103 
109 


118 
.   119 

131 

a  13P 

.  135 
III 

.  141 

141 

.  146 

151 
.  156 

161 
.  16^3 

165 

.  179 

187 

.  197 

199 
.  201 


^04 

205 


TABLE   OF   CONTENTS.  vii 

Husband  and  wife  in  law  of  tort  —  continued  ^^e. 

Torts  to  the  wife            •.-.....  206 

Torts  by  husband  and  wife 209 

Torts  as  between  husband  and  wife 211 

Torts  to  the  husband  in  his  marital  relation 

Loss  of  wife's  services 214 

Alienation  of  affections      .         .         .         ,         .         .         .217 

Criminal  conversation             .......  223 

Husband  and  wife  in  the  law  of  crimes 

Crimes  by  the  wife         ........  230 

Crimes  as  between  husband  and  wife       .....  233 

Capacity  of  the  husband  or  wife  to  testify  for  or  against  each 

other 235 


CHAPTER  IV. 

DIVORCE   AND   SEPARATION. 

Jurisdiction 240 

Grounds  for  granting  divorce 

Adultery 274 

Cruelty 276 

Desertion        . -        .        ,       283 

Imprisonment 286 

Grounds  for  refusing  divorce 

Condonation 287 

Connivance 289 

Collusion 291 

Recrimination 293 

Insufficient  evidence       .        .        •        .        .        ,        .        .      296 

Alimony 

Permanent 29b 

Temporary •        .        ,        .      301 

Unconnected  with  divorce         .•••••.  302 

Legislative  divorce    .         ..••••..      304 

Effect  of  divorce 316 

Agreement  to  separate       .         .        .        •        •        •        .        .322 


VUl 


lAbLfc   Ol-    CONTENTS. 


PART   II. 


PARENT  AND  CHILD. 


Custody  of  the  child    ..... 

Maintenance  of   the  child.  —  Liability  of  the  parent 
saries         ...... 

Earnings  and  emancipation  of  the  child 
Property  of  the  child        .  .         . 

Chastisement  and  restraint  of  the  child 
Parent  and  child  in  the  law  of  tort 

Torts  by  the  child  ... 

Torts  to  the  child    ..... 

Totts  as  between  parent  and  child 

Torts  to  the  parent  in  the  filial  relation 
Legitimacy 

Evidence  of  illegitimacy       .         .         . 

Status  of  illegitimate  child 

Custody  ot  illegitimate  child 

Legitimation  by  marriage         .         ,         , 
Adoption 

Status  of  adopted  child 

Act  of  adoption        ..... 
Step-children 

Earnings  and  maintenance  .         .         . 


for 


neces" 


»ACK 

335 
341 

347 
349 

353 
355 
350 
356 

360 
361 
362 

363 

365 
374 

376 


PART   III. 


INFANCY. 


Period  of  infancy 

Contracts  of  infants 
Voidability  of  contracts 

Earlier  rule  .         ,         , 

Later  rule 
Avoidance  of  contracts 
Ai)pointment  of  agent 
Avoidance  during  minority 
Avoidance  after  minority 
What  constitutes  avoidance 


379 


.  380 

.  384 
389 

•  394 
405 


TABLE  OF  CONTENTS. 


IX 


PACK 
411 


Contracts  of  infants  —  continued 
Avoidance  of  contracts 

Avoidance  in  part         . 

Avoidance  a  privilege  personal  to  the  infant    .         ,        , 
Effect  of  avoidance 

In  general  .         .         .         .         .         .         . 

Whe^i  action  is  brought  by  the  adult,  upon  the  avoided 

contract  .         . 

When  action  is  brought  by  the   infant,  based  upon  his 
avoidance 
To  recover  for  personal  services         .         ,         .         .419 
To  recover  money  paid  .         .         .      425-434,  436-443 

To  recover  property  transferred         .         .         435,  444-448 
When  action   is  brought,  by  the  adult,  based  upon  the 
infant's  avoidance       ....... 

Ratification  of  contracts 

What  constitutes  ratification     ...... 

Whether  ratification  must  be  made  with  knowledge  of  non- 
liability . 

Recovery  upon  the  ratified  promise  .... 

Non-voidable  contracts 

In  general 

For  necessaries 

In  general      ..... 
For  the  infant's  family      .         .         . 
Obligation  quasi-contractual 
What  are  necessaries 
Executory  contract  for  necessaries 
Money  loaned  for  necessaries  . 
Promissory  note  for  necessaries    . 
Torts  by  infants 

In  general •        •         •         .  488 

When  connected  with  contract     ..«•••       490 
Crimes  by  infants         .         .         .         ,         .        ,         •         ,    -     .  511 

Cai^acity  of  infants  to  testify ,512 

Devises  and  bequests  by  infants  .         ,         ,        ,         •       .,514 

Capacity  of  infants  to  hold  office     ......       515 

Liability  of  an  infant  for  ante-nuptial  debts  of  his  wife       .         .  519 


449 

452 

460 
463 

465 

468 

471 
473 

474 
478 
481 
483 


X  TABLE   OF  CONTENTS. 

PART   IV. 

INSANITY. 

Insanity  and  mental  weakness  ......  520 

N'oidability  of  contracts  and  conveyances  of  insane  persons       .  521 

Testamentary  capacity  of  insane  persons         .         .         .         •  55^ 

Torts  by  insane  persons      ........  557 

Crimes  by  insane  persons         .......  566 

Capacity  of  insane  persons  to  testify  ......  582 

Judicial  determination  of  insanity   ......  5S6 


PART  V. 

DRUNKENNESS. 

Contracts  by  drunken  persons 394 

Torts  by  drunken  persons        .......       596 

Crimes  by  drunken  persons 597 


PART  VI. 

ALIENS. 

Alien  friends 

Property  rights     .         .         .         .         .         .         ,         .         ,       603 

Capacity  to  sue  and  be  sued    .......  609 

Alien  enemies 

Contracts      ......,,  ,      613 

Capacity  to  sue  and  be  sued    ...••..  619 


TABLE  OF  CASES. 


,  *  ,  Where  n.  is  prefixed  to  the  page  number,  the  case  is  not  reported  here, 
bat  is  either  referred  to,  or  digested,  in  a  note. 


rAGB 

Abbott  V.  Abbott 

211 

Adger  V.  Ackerman 

u 

.  58 

Aitchison  v   Aitchison 

n. 

275 

Alexander,  In  re  Mary  Aaa 

135 

Alexandre  v.  Alexandre 

287 

Allen  V.  Berryhill 

540 

Allis  V.  Billings 

543 

Ankeney  v.  Hannon 

179 

Athefton  v.  Atherton 

H. 

267 

Babb  V.  Perley 

131 

Bailey  v.  State 

*i 

.  36 

Banks  v.  Conant 

347 

Barker  v.  Hibbard 

M. 

476 

Barker  v.  Valentine 

tl 

.  58 

Barnes  v.  Barnes 

291 

Barrett  v.  Buxton 

U. 

596 

Bcrgh  V.  Warner 

92 

Bestor  v.  Hickey 

H. 

463 

Bigaouette  v.  Paulet 

223 

Billings  V.  Billings 

296 

Bishop  V.  Shepherd 

341 

Blattmacher  v.  Saal 

K 

•  M 

Blinn  v.  Schwarz                M.  597,  «. 

546 

Bool  V.  Mix 

n. 

393 

Boozer  v.  Addison 

I2T 

Bozeman  v.  Browning 

411 

Bradley  v.  Pratt 

484 

Brtck  V.  Gannar 

n.   5 

Brock  V.  The  State 

363 

Brosnan  v.  Sweetser 

n. 

356 

Brown  v.  Miles 

ft. 

546 

Budd  V.  Crea 

fi 

•   19 

Burke  v.  Shaver 

5 

Burtis  V.  Burtis 

ft. 

200 

Bush  V.  Breinig 

594 

PAGE 

Caflfey  v.  Kelley 

118 

Cantine  v.  Phillips 

471 

Caplinger  v.  Sullivan 

124 

Carey  v.  Mackey 

no 

Carney  z>.  Barrett 

336 

Chandler  v.  Simmons 

447 

Chapin  v.  Shafer 

408 

Church  V.  Bull 

143 

Churchill  v.  White 

«.  493 

Clay  V.  Shirley 

ft.  344 

Cloud  V.  Hamilton 

343 

Cobbey  v.  Buchanan 

504 

Coburn  v.  Raymond 

531 

Coleman  v.  Commonwealth 

«.   586 

Collins  7,'.  Cory 

ft.  326 

Collins  V.  Voorhees 

51 

Commonwealth  v.  Daley 

M.    232 

Commonwealth  v.  Graham 

344 

Commonwealth  v.  Sapp 

235 

Constable  v.  Rosener 

ft.    QI 

Coolidge  z/.  Neat 

ft.    13 

Cooney  v.  Woodburn 

174 

Cooper  V.  McNamara 

334 

Corrie  v.  Corrie 

323 

Coursolle  v.  Weyerhauser 

387 

Crafts  V.  Carr 

m.  476 

Craig  V.  Van  Bebber 

H.    448 

Craighead  v.  Wells 

417 

Cruger  v.  Douglas 

203 

Cummins  f.  Cummins 

296 

Dalton  V.  The  State 

362 

Danforth  v.  Danforth 

285 

Davis  V.  Baugh 

514 

Delafield  7/.  Parish 

«•  557 

Denver  &  R.  G.  R.  R.  v.  Lorentzen  «.  356 


[xij 


Xll 


TAliLE   (Jl-    CAbES. 


PACK 

Dickerson  v.  Gordon 

n. 

419 

Dickinson  t.   Barber 

n. 

566 

Di  Lorenzo  v.  Di  Lorenzo 

68 

District  of  Columbia  v.  Armes 

582 

Ditson  V.  Ditson 

240 

Dorsey  v.  Thompson 

619 

Downey  v.  Downey 

n. 

304 

Drude  v.  Curtis 

439 

Duncan  v.  Duncan 

30 

Dunham  v.  Dunham 

n. 

260 

Eaton  V.  Hill 

490 

Edwards  v.  Davis 

n. 

334 

Ellis'  Estate 

267 

Ensign,  Estate  of 

316 

Eureka  Co.  v.  Edwards 

n. 

447 

Farley  v.  Farley  (Ala.) 

62 

Farley  v.  Farley  ^Ky.) 

106 

Farrar  v.  Bessey 

83 

Felt  V.  Felt     . 

257 

Ferguson  v.  Bobo 

506 

Ferguson  v.  Tweedy 

146 

Feirow  v.  Wiseman 

n. 

384 

Fisher  v.  Bernard 

40 

Fisher  v.  Fisher 

n. 

289 

Fisk  J.  Fisk 

ti 

.  73 

Fletcher  v.  The  People 

349 

Fool  V.  Card 

219 

Foote  V.  Nickerson 

n. 

"7 

Foster  v.  Marshall 

148 

Foster  v.  Wilcox 

65 

Freto  v.  Brown 

376 

Fulton  V.  Fulton 

n. 

339 

Furgeson  v.  Jones 

374 

G V.  G «.  49 

Gaflord  v.  Dunham  88 

Gelzer  v.  Gelzer  141 

Gilley  v.  Gilley  337 

Gillis  V.  Goodwin  tt.  438 

Godfrey  v.  Hays  «.  347 

Goldman  v.  Cohen  228 
Good  now  V.  Empire  Lumber  Co.       394 

Goodsell  V.  Myers  n.  453 

Grant  v.  Grant  n.  343 

Gray  v.  Thacker  79 

Green  v.  Green  435 

Greenheld  v.  Morrison  603 

Gregory  v.  Lee  478 


fMm 

Gregory  v.  Pierce 

86 

Griffin  v.  Griffin 

M. 

396 

Haddon  v.  Haddon 

30  r 

Hamilton  v.  Hamilton 

M. 

267 

Hamilton  v.  Vaughn 

442 

Hammond  v.  Hammond 

fl. 

267 

Hanks  ai/s.  Deal 

510 

Hardy  v.  Waters 

385 

Hargrave  v.  Hargrave 

n. 

36  r 

Harley  v.  The  State 

604 

Harrison  v.  Harrison 

61 

Hart  V.  Leete 

126 

Harwel's  Case 

M. 

.131 

Hastings  v.  Dollarhide 

n. 

386 

Hatch  V.  Hatch's  Estate 

457 

Haviland  ?'.  Hallstead 

n 

•   14 

Hawk  V.  Harman 

204 

Hayden  v.  Vreeland 

n 

.  22 

Hayes  v.  People 

ti 

.   36 

Hayr.es  v.  Bennett 

H, 

407 

Haynes  v.  Nowlin 

H. 

223 

Hemmenway  v.  Towner 

360 

Heninger  v.  Heninger 

29S 

Hicks  V.  Smith 

361 

Hiles  V.  Fisher 

151 

Hill  V.  Childress 

n. 

325 

Hinds  V.  Hinds 

302 

Hodge  V.  Wetzler 

n. 

223 

Hollister  z/.  Valentine 

n. 

227 

Horgan  v.  Pacific  Mills 

356 

Holleman  v.  Harward 

n. 

217 

Homan  v.  Earle 

3 

Houghton  V.  Rice 

n. 

219 

Hoverson  v.  Noker 

345 

Howard  v.  Menifee 

119 

Hoyt  -'.  Wilkinson 

415 

Huchting  v.  Engel 

488 

Hughes  V.  Jones 

586 

Hulett  V.  Carey 

28 

Humphries  c.  Davis 

365 

Hunt  V.  Massey 

463 

Hynes  v.  McDermott 

H 

.  58 

Imperial  Loan  Co.  v.  Stone 

527 

Jacques    7.    Methodist  Episcopal 

Church  172 

Johnson  7j.  Glidden  n.   355 

Johnson  7/.  Lines  468 


TABLE   OK   CASES. 


XIU 


Johnson  v.  Northwestern  Mut.  Life 

Ins.  Co.  428 

Johnson  v.  Vail  176 

Jordan  v.  Coffield  476 


Kelley  v.  Davis 

325 

Kelley  v.  Riley 

10 

Kendall  v.  May 

n. 

551 

Kershaw  v,  Kelsey 

613 

Kimball,  In  re 

n. 

267 

king     of     Prussia     v.    Kuepper's 

Adm'r 

n. 

611 

Koonce  v.  Wallace 

37 

Kosminsky  v.  Goldberg 

205 

Kroessin  v.  Keller 

225 

Kujek  V.  Goldman 

n. 

217 

Lamb  v.  Belden 

73 

Lansing  v.  R.  R. 

n. 

391 

Laughlin  v  Eaton 

206 

Lemmon  v.  Beeman 

425 

Leonard  v.  Leonard 

286 

Lewis  V.  Lewis 

47 

Lewis  V.  Tapman 

«•  5 

Lilley  ?'.  Waggoner 

n. 

547 

Livingston  v.  Hammond 

n. 

378 

Lorimer  v.  Lorimer 

n 

•   29 

Lowery  v.  Gate 

n. 

495 

Lueppie  v.  Osborn 

n. 

102 

McCarthy  v.  Nicrosi 

n. 

417 

McCarty  v.  Carter 

455 

McCauley  v.  Grimes 

140 

McClurg  V.  Terry 

76 

McCormick  v.  Littler 

n. 

551 

McGown  V.  McGown 

n. 

267 

McGrael  v.  Taylor 

n. 

447 

McGregor  v.  McGregor 

114 

McKelvey  v.  McKelvey 

350 

McLaughlin's  Estate 

M 

.    28 

Maddox  v.  Simmons 

520 

Manley's  Ex'r  v.  Staples 

591 

Manning  v.  Johnson 

444 

Manning  v.  Wells 

n. 

333 

Maynard  v.  Hill 

304 

Meister  v.  Moore 

23 

Mercein  v.  The  People 

324 

Merritt  v.  Merritt 

526 

Middleditch  ■;>.  Williams 

551 

Mighell  V.  Sultan  of  Johore 

609 

Miller  v.  Miller 
Minock  n.  Shortridge 
Moller  V.  MoUer 
Moore  v.  Graves 
Moore  v.  Page 
Moors  V.  Moors 
Morse  v.  Ely 
Morse  v.  Wheeler 
Moss  V.  Moss 
Mulvehall  v.  Millward 


PACE 

n.  365 
n.  465 
n.  29H 

515 
156 
274 
418 
460 
«.  62 
358 


Neal  V.  Gillett  n.  489 

New  Hampshire  Mut.  Fire  Ins.  Co. 

V.  Noyes  474 

Nicolaus  V.  Snyder  n,  344 

Nix  V.  Bradley  165 

North  Western  Ry.  v.  McMichael  400 


O'Grady  v.  The  State 
Oliver  v.  Houdlet 
O'Rourke  71.  Ins.  Co. 
Owen  V.  Long 

Parker  v.  Cowan 
Parsons  v.  The  State 
Paul  V.  Hummel 
Pease  v.  Pease 
Peck  V.  Peck 
People  V.  Baker 
People  V.  Cole 
People  V.  Faber 
Pelletier  7'.  Couture 
Penrose  v.  Curren 
People  V.  Leonard! 
People  V.  Moores 
People  V.  Walker 
People  V.  Winters 
Peppercorn  v.  Black  River 
Perkins  v.  Hers^y 
Petit  V.  Petit 
Pierce  v.  Pierce 
Poindexter  v.  Jeffries 
Pollock  V.  Sullivan 
Powell  V.  Powell  (Kan.) 
Powell  V.  Powell  (Vt.) 
Prescott  V.  Brown 
Preizinger  v.  Pretzinger 
Price  V.  Price 
Prout  V.  Wiley 
Pulling,  Estate  of 


Falls 


597 

380 

«.  502 

n.  463 

80 

566 

353 

293 

36 

261 

».  235 

«.  322 

448 

«■  495 
600 
465 
600 
201 

355 

I 

«.  275 

103 

187 

13 

44 

200 

163 

«•  339 
14  r 

n.  399 
137 


TABLE   OF   CASES. 


PAGII 

Queen  v.  Jackson 

20I 

Ramsey  v.  Ramsey 

n. 

339 

Randall  r.  Sweet 

n. 

4?3 

Ray  t'.  Tubbs 

510 

Reed  v.  Harper 

59^ 

Reese  v.  Waters 

606 

Reinders  v.  Koppelman 

n. 

373 

Rice  V.  Boyer 

495 

Rice  V.  Butler 

43<J 

Riley's  Adm'r  v.  Riley 

130 

Rinehart  v.  Bills 

217 

Roach  &  McLean  v.  Quick 

519 

Roberts  v.  Knights 

611 

Robinson  v.  Robinson 

276 

Ross  V.  Ross 

n. 

376 

Rubeck  v.  Gardner 

n. 

607 

Sceva  V.  True 

547 

Seaver  r-.  Phelps 

535 

Shackleford  v.  Hamilton 

ft 

•   19 

Sheppard  v.  Kindle 

84 

Simar  v.  Canaday 

H. 

137 

Simmons  v.  Brown 

209 

Simpson  v.  Co. 

n. 

434 

Sims  V.  Everhardt 

396 

Sims  :■.  Rickets 

159 

Singer  Manufacturing  Co.  v.  Lamb 

405 

Skinner  v.  Tirrell 

lOI 

Skoglund  V.  Minneapolis  Ry 

214 

Slaylon  v.  Barry 

501 

Slinger,  Will  of 

n. 

592 

Smith  V.  Rogers 

377 

Smith  V.  Smith 

64 

Snyder  v.  The  People 

n. 

235 

Southworth  v.  Treadwell 

n. 

301 

Spooner  v.  Spooner 

109 

Starbuck  v.  Starbuck 

271 

Starr  v.  Wright 

n. 

466 

Stale  V.  Banks 

233 

State  V.  Clark 

379 

State  V.  Jones 

n. 

349 

State  V.  Lowell 

41 

State  V.  Ma  Foo 

230 

State  V.  Murray 

H 

603 

State  V.  Smith 

n. 

603 

State  f.  Tice 

511 

Stebbins  v.  Palmer 

20 

Still  7/    Ruby 

197 

Strain  v.  Wright 

449 

PACK 

Stull.  Estate  of  n.   322 

Stroop  V.  Swarts  yo% 

Studwell  V.  Shaptcr  503 

Sullivan  v.  Fitzgerald  n.  348 

Suter  V.  Suter  191; 

Sutton  V.  Warren  49 

Svenson  v.  Svenson  n.  68 
Swasey  v.  Adm'r  of  Vanderheyden  483 

Swift  V.  Bennett  481 

Taylor  v.  Seil  «.  355 
Texas  &  Pac.  Ry  v.  HumWe        «.  208 

Thompson  v.  Lay  452 

Thorne,  In  re  n.  373 

Tobey  v.  Wood  453 

Todd  V.  Todd          ,  73 

Towle  V.  Dresser  389 

Tozer  v.  Saturlee  5go 

Trainer  v.  Trumbull  473 

Trueblood  v.  Trueblood  384 

Uhlmann  v.  Uhlmann  n.  296 

Ullman  v.  Meyer  3 

Van  Houten  v.  Morse  14 

Van  Valkinburgh  v.  Watson  333 

Van  Voorhis  v.  Brintnall  n.  yi2 

Van  Winkle  v.  Schoonmaker  161 

Vehue  v.  Pinkham  421 

Vosburg  V.  Putney  h.  489 

Vusler  V.  Cox  89 

Wade  V.  Kalbfleisch  n.  22 

Wanamaker  v.  Weaver  95 

Watson  V.  Cross  466 

Watson  V.  Watson  283 

Watts  V.  Steele  340 

Waugh  V.  Riley  606 

Weaver  v.  Jones  381 

Weed  V.  Beebe  409 

Welch  V.  Bunce  39' 

Wendel  v.  Wendcl  n.  49 

West  V.  Penny  n.  465 

Wheeler  v.  The  State  593 

Wheeler  v.  United  State*  512 

Whipp  V.  The  State  n.  239 

White  V.  Wager  158 

Whitmarsh  v.  Hall  419 

Wilhelm  v.  Hardman  42s 


TABLE   OF   CASES. 


XV 


PAGE 

WilliaDds  y.  Hays 

557 

Williams  v.  Wentworth 

«. 

551 

Willwerth  v.  Leonard 

588 

Wilson  V,  McMilan 

345 

Wilson  V.  Wilson 

289 

Winston  v.  Winston 

H. 

298 

Wolf  V.  Bauereis 

n. 

208 

Wolf  V,  Frank 

H. 

223 

Woolfolk  V.  Woolfolk 
Wunderle  v.  Wunderle 

Yale  V.  Curtiss 
Yeates  v.  Reed 
Young  V.  Stevens 

Zilley  V.  Dunwiddie 


FACE 

n.  286 

608 

«•  3 
H.    566 

521 
»•  339 


CASES  ON  DOMESTIC  RELATIONS 


THE  LAW   OF   PERSONS. 


CASES  ON  DOMESTIC  RELATIONS 


THE  LAW  OF  PERSONS, 


PART  I. 

MARRIAGE. 


CHAPTER  I. 
CONTRACT    TO   MARRY. 

Proof  of  CoittracL 

PERKINS  V.  HERSEY. 
I  R.  I.  493.— 1851. 

Assumpsit  for  breach  of  promise  of  marriage.  Plea,  non  assump- 
sit. There  was  no  express  promise  of  marriage  proved.  Evidence  was 
given  that  the  defendant  had  been  much  in  the  society  of  the  plain- 
tiff, visiting  her  frequently,  walking  with  her  alone,  and  taking  her 
to  ride;  that,  during  the  sickness  of  the  plaintiff,  the  defendant  had 
shown  a  deep  interest  in  her,  and  had  brought  her  sister,  who  resided 
at  a  distance,  to  take  care  of  her;  that  he  had  stayed  at  her  father's 
house  at  one  time  for  several  days,  and  had  continued  his  attentions 
to  her  for  nearly  two  years.  The  plaintiff  then  gave  birth  to  a  child, 
alleged  to  be  the  child  of  the  defendant,  and  the  defendant  discon- 
tinued the  intimacy. 

Greene,  Chief  Justice,  charged  the  jury.  The  plaintiff  sets  forth 
in  her  declaration,  mutual  promises  of  marriage  made  by  the  plaintiff 
on  one  hand,  and  the  defendant  on  the  other,  and  broken  by  the  de- 
fendant, and  asks  damages  for  the  breach  of  promise.  The  plaintiff 
must  first  prove  the  contract  on  which  the  action  is  founded,  that  is, 
[Domestic  Relations  —  i.l 


2  CONTRACT   TO    MARRY. 

a  promise  of  marriage  made  by  the  defendant  and  accepted  by  the 
plaintifif.  A  contract  may  be  proved  either  by  witnesses  who  heard 
it  made,  or  by  facts  and  circumstances  from  which  it  may  be  inferred. 
It  is  evident  that  a  contract  like  the  present  can  generally  be  proved 
only  in  the  latter  mode.  It  is  made  in  mutual  confidence,  in  pri- 
vate, in  the  absence  of  witnesses.  There  are  some  differences  in 
opinion  in  the  courts  in  regard  to  the  kind  of  facts  which  are  admis- 
sible to  prove  this  promise;  but  there  is  no  doubt  that  it  may  be  in- 
ferred from  circumstances.  What  then  are  the  circumstances  ? 
The  ordinary  politeness  and  civility,  which  a  gentleman  extends  to 
a  lady,  are  not  to  be  considered  as  furnishing  any  proof  of  such  a 
promise.  The  safest  rule  we  can  lay  down  is  this.  If  you  find  that 
the  attentions  which  the  defendant  paid  the  plaintiff,  and  the  inter- 
course between  them,  were  such  as  are  usual  with  persons  engaged 
to  be  married;  and  such  as  are  unusual  with  persons  between  whom 
there  exists  no  such  relation,  they  are  competent  for  you  to  consider 
as  evidence  which  may  or  may  not,  as  you  may  determine,  suffice  to 
prove  a  promise  of  marriage.  It  is  not  necessary  for  you  to  consider 
that  there  was  an  express  promise  made  and  accepted  in  terms,  but 
if  his  conduct  was  such  as  to  induce  her  to  believe  that  he  intended 
to  marry  her,  and  she  acted  upon  that  belief,  the  defendant  permit- 
ting her  to  go  on  trusting  that  he  would  carry  the  intention  into 
effect,  that  will  raise  a  promise  upon  which  she  may  recover.  But 
this  must  be  shown  by  facts  and  circumstances,  and  you  cannot 
consider  the  understanding  of  the  friends  of  the  parties  as  to  the 
relation  between  them.  If  you  think  there  was  a  promise,  you  will 
next  have  to  consider  the  damages  for  the  breach  of  it.  The  prom- 
ise is  as  binding  as  any  other;  but  the  damage  by  breach  of  it  is 
from  its  nature  not  susceptible  of  pecuniary  measurement.  If  a 
man  promises  to  pay  a  sum  of  money  and  fails,  the  damages  are  the 
sum  promised  with  interest  thereon  from  the  date  of  the  breach  of 
contract.  But  the  damages  here  do  not  rest  on  anything  of  a  pecu- 
niary nature.  The  amount,  therefore,  lies  very  much  in  your  dis- 
cretion. You  will  consider  the  injury 'done  to  the  plaintiff's  feelings 
—  her  prospects,  her  reputation,  and  her  social  position,  and 
will  give  her  just  such  damages  as  a  girl  like  her,  treated  as  she  has 
been,  ought  to  receive.  You  will  consider  what  would  have  been 
her  standing  had  the  defendant  married  her,  and  what  is  her  situa- 
tion now  that  he  refuses.  The  fact  that  the  plaintiff  was  seduced 
you  will  not  consider  in  this  connection.  We  have  a  statute  which 
affords  the  plaintiff  a  remedy  for  the  injury  thus  done  to  her,  in  a 
more  appropriate  form. 

Verdict  for  the  plaintiff  for  $3,000. 


PROOF   OF   CONTRACT.  3 

Church,  C.  J.,  in  HOMAN  v.  EARLE. 

53  N.  Y.  267,  273.— 1873. 

I  AGREE  with  the  learned  counsel  for  the  defendant  that  to  con- 
stitute a  promise  of  marriage  substantial  proof  should  be  required 
of  the  fact.  In  the  case  of  Honeyman  v.  Campbell^  5  Wils.  &  Shaw, 
144;  2  Dow.  &  Clark,  282,  cited  and  very  much  relied  upon  by  the 
defendant's  counsel,  the  lord  chancellor  has,  I  think,  correctly 
stated  the  law  upon  the  subject.  The  propositions  of  the  opinion 
are:  i.  That  the  contract  may  be  proved  by  direct  or  by  circum- 
stantial evidence.  2.  That  there  must  be  a  serious  promise,  in- 
tended as  such  by  the  person  making  it,  and  accepted  by  the  person 
to  whom  it  is  made.  3.  That  mere  courtship  or  even  an  intention 
to  marry  is  not  sufficient  to  constitute  a  contract  of  marriage. 
These  propositions  are  entirely  sound  and  do  not  conflict  with  the 
law  of  the  court  in  this  case.  The  opinion  does  not  attempt  to 
define  what  circumstances  will  be  deemed  sufficient  nor  from  what 
acts  or  language  a  serious  promise  may  be  inferred.  True,  it  holds, 
and  I  think  correctly,  that  neither  courtship  nor  a  mere  intention  is 
alone  sufficient,  but  the  chancellor  says:  "  But  courtship  is  a  most 
material  fact  in  the  case  when  you  are  examining  whether  from  the 
conduct  of  the  parties  it  appears  that  a  promise  had  actually  passed 
between  them."  So,  while  it  is  plain  that  an  intention  to  make  a 
contract  is  not  a  contract,  yet  if  such  intention  is  so  expressed  as 
that  both  parties  understand  it  to  be  a  promise,  and  it  is  accepted  as 
such,  it  is  as  binding  as  if  made  in  any  other  form.  Parties  may 
select  their  own  language,  and  if  from  that  and  their  conduct  a 
legitimate  inference  may  be  drawn  of  their  intention  and  under- 
standing, such  intention  must  be  carried  out.  The  expressions  in 
some  of  the  cases,  that  a  contract  may  be  inferred  from  devoted 
attention  and  apparently  exclusive  attachment,  have  not  been  gen- 
erally adopted  by  the  courts.     15  Mass.  i,  note.* 


ULLMAN  V.  MEYER. 
10  Fed.  Rep.  241.     (Circuit  Court,  S.  D  ,  N.  Y.)  —  1882. 
Motion  for  a  new  trial. 

Wallace,  D.  J.  I  am  constrained  to  hold  that  the  defendant 
was  erroneously  precluded  from  the  benefit  of  his  defence  under  the 
statute  of  frauds  on  the  trial  of  the  action,  and  that  the  construction 

'  Upon  the  sufficiency  of  evidence,  see  also   YaU  v.  Ciirtiss,  151  N.  Y.  5qS. 


4  CONTRACT   TO    MARRV. 

of  the  statute,  which,  upon  a  liasty  reading  seemed  correct,  cannot 
be  maintained.  The  case  turns  upon  the  construction  of  the  statute 
(if  frauds,  the  phraseology  of  which  differs  from  that  of  the  statute 
of  Charles  11.  It  is  stated  in  Parsons  on  Contracts,  vol.  3,  p.  3, 
that  although  provisions  substantially  similar  have  been  made  by  the 
statutes  of  this  country,  in  no  one  state  is  the  English  statute  ex- 
actly copied. 

It  was  alleged  in  the  present  case,  and  the  evidence  tended  to 
show,  that  by  the  terms  of  the  agreement  of  marriage  between  the 
parties,  the  marriage  was  not  to  take  place  until  sometime  after  the 
expiration  of  one  year.  It  was  held  that,  by  force  of  the  exception 
in  the  third  section  of  our  statute,  promises  to  marry  were  not 
required  to  be  in  writing  under  any  circumstances,  the  view  being 
taken  that  it  was  the  intention  of  the  statute  to  withdraw  agreements 
to  marry  altogether  from  its  operation. 

As  an  original  proposition  it  might  be  debated  whether  the  statute 
of  frauds  was  ever  intended  to  apply  to  agreements  to  marry.  They 
are  agreements  of  a  private  and  confidential  nature,  which,  in  coun- 
tries where  the  common  law  prevails,  are  usually  proved  by  circum- 
stantial evidence,  and  at  the  time  the  English  statute  was  passed 
were  not  actionable  at  law,  but  were  the  subjects  of  proceedings  in 
the  ecclesiastical  courts  to  compel  performance  of  them.  Neverthe- 
less, at  an  early  day  after  such  actions  became  cognizable  in  courts 
of  law  the  defence  of  the  statute  of  frauds  was  interposed,  under 
that  clause  of  the  statute  which  denies  a  right  of  action  upon  any 
agreement  made  upon  consideration  of  marriage  unless  the  agree- 
ment is  in  writing;  and  though  it  was  held  that  such  clause  only 
related  to  agreements  for  marriage  settlements,  there  seems  to  have 
been  no  doubt  in  the  minds  of  the  judges  that  promises  to  marry 
were  within  the  general  purview  of  the  statute.  In  our  own  coun- 
try, in  Derby  v.  Phelps,  2  N.  H.  515,  the  question  was  directly 
decided,  and  it  was  held  that  although  the  defence  could  not  be  main- 
tained under  the  marriage  clause  of  the  statute,  it  was  tenable  under 
the  clause  requiring  all  agreements  not  to  be  performed  within  a 
year  to  be  in  writing.  To  the  same  effect  are  Nichols  v.  Weaver, 
1  Kan.  373,  and  Lawrence  v.  Cooke,  56  Me.  193. 

The  question  has  never  been  presented  in  our  own  state,  and  the 
ruling  upon  the  trial  was  made  under  the  impression  that  the  excep- 
tion in  the  third  clause  of  our  statute  was  meaningless,  unless  in- 
tended to  relate  to  all  the  clauses.  It  was  entirely  unnecessary  if 
limited  to  the  particular  clause  in  which  it  is  placed,  because  by  the 
settled  construction  of  the  statute  the  clause  did  not  apply  to  the 
excepted  class  of  promises,     i  Ld.  Raym.  387  ;   i  Strangt,  34.    When 


ILLEGAL   CONSIDERATION.  5 

English  statutes,  such  as  the  statute  of  frauds,  have  been  adopted 
into  our  own  legislation,  the  known  and  settled  construction  of  these 
statutes  has  been  considered  as  silently  incorporated  into  the  acts. 
Fennock  v.  Dialogue,  2  Pet.  i. 

\  more  careful  examination  has,  however,  satisfied  me  that  the 
only  purpose  of  inserting  the  exception  was  by  way  of  explanation, 
and  to  remove  any  doubt  as  to  the  meaning  of  the  clause  by  incor- 
porating into  it  expressly  what  would  otherwise  have  been  left  to 
implication.  This  conclusion  is  more  reasonable  than  the  supposi- 
tion that  so  important  an  innovation  upon  the  statute  of  frauds 
would  have  been  engrafted  so  ambiguously.  If  it  has  been  intended 
to  exclude  promises  of  marriage  altogether  from  the  operation  of  the 
statute,  it  could  have  been  plainly  evinced  by  inserting  the  exception 
where  it  would  naturally  apply  to  all  the  classes  of  contracts  required 
to  be  in  writing;  as  it  is,  it  more  obviously  refers  to  the  marriage 
clause,  and  the  class  of  promises  covered  by  that  clause.  It  has  no 
necessary  relation  to  the  other  classes  of  promises.  While  the  let- 
ters of  the  parties  show  a  marriage  engagement,  the  terms  of  the 
engagement  and  the  time  of  the  marriage  are  not  indicated  sufii- 
ciently  to  take  the  case  out  of  the  statute.  The  evidence  offered  to 
show  that  the  promise  of  the  defendant  was  not,  by  its  terms,  to  be 
performed  within  a  year,  was  sufficient  to  present  a  question  of  fact 
for  the  jury. 

As  this  question  was  withdrawn  from  their  consideration,  there 
must  be  a  new  trial.* 


Illegal  Consideration. 

BURKE  V.  SHAVER. 

92  Va.   345.— 1895. 

Error  to  Circuit  Court,  Rockingham  County. 

Action  by  Alice  E.  Shaver  against  Robert  M.  Burke.  There  was 
a  judgment  for  plaintiff,  and  defendant  brings  error.     Reversed. 

Cardwell,  J.  This  is  a  writ  of  error  to  a  judgment  of  the  Cir- 
cuit Court  of  Rockingham  county.  The  action  is  for  a  breach  of 
promise  of  marriage  brought  by  the  defendant  in  error  against  the 
plaintiff  in  error, —  the  declaration  alleging,  in  aggravation  of  dam- 
ages, the  seduction  of  defendant  in  error,  birth  of  child,  etc., —  and 
at  the  trial  the  jury  awarded  damages  in  the  sum  of  $1,000. 

'  Contra,  Brick  v.  Gannar,  36  Hun,  52;  Lewis  v.   Tapman,  go  Md.  294. 


6  CONTRACT    TO    MARRV. 

The  first  assignment  of  error  is  to  the  refusal  of  the  trial  court  to 
give  the  following  instructions,  asked  for  by  the  defendant  (plaintiff 
in  error):  Instruction  i.  "  The  jury  are  instructed  that  if  the  plain 
tiff  yielded  to  the  request  of  the  defendant  to  have  sexual  intercourse 
with  her  upon  the  promise  of  the  defendant,  if  the  plaintiff  got  into 
trouble,  he  would  marry  her,  such  contract  did  not  constitute  a  legal 
contract  of  marriage."  Instruction  2.  "The  jury  are  instructed 
that,  upon  an  agreement  between  a  single  man  and  a  single  woman 
to  have  illicit  intercourse,  and  that,  if  pregnancy  of  the  female  shall 
follow,  the  man  agrees  to  marry  the  woman,  such  agreement  is 
against  morality,  and  does  not  create  a  legal  contract  of  marriage." 

The  first  question  to  be  determined  is  whether  these  instructions 
correctly  propound  the  law  applicable  to  the  case.  A  contract  for 
marriage  is  the  mutual  agreement  of  a  man  and  a  woman  to  marry 
each  other,  or  become  husband  and  wife,  in  the  future,  and  must 
satisfy  the  legal  requirements  as  to  parties,  consideration,  etc.,  as 
other  contracts  must.  Wharton,  in  his  work  on  the  Law  of  Contracts 
(volume  I,  sec.  373),  states  the  law  thus:  "  An  agreement  is  void 
when  the  consideration  is  future  illicit  cohabitation,  no  matter  what 
other  considerations  may  unite,  or  how  skillfully  the  illegal  object 
might  be  clothed.  *  *  *  A  promise  of  marriage  on  consideration 
of  sexual  intercourse  also  is  void."  Chancellor  Kent,  in  his  Com- 
mentaries (volume  2,  13th  ed.,  p.  467),  in  discussing  what  constitutes 
a  valuable  consideration  of  a  contract,  says:  "The  consider- 
ation must  not  only  be  valuable,  but  it  must  be  a  lawful  considera- 
tion, and  not  repugnant  to  law,  or  sound  policy,  or  good  morals. 
*  Ex  turpi  contractu^  actio  non  oritin-j '  and  no  person,  even  so  far 
back  as  the  feudal  ages,  was  permitted  by  law  to  stipulate  for  in- 
iquity. The  reports  in  every  period  of  English  jurisprudence  and 
our  American  reports  equally  abound  with  cases  of  contracts  held 
illegal  on  account  of  the  illegality  of  the  consideration,  and  they 
contain  certain  striking  illustrations  of  the  general  rule  that  con- 
tracts are  illegal  when  founded  on  a  consideration  contra  botws 
mores,  or  against  principles  of  sound  policy,  or  founded  in  fraud,  or 
in  contravention  of  the  positive  provisions  of  some  statute  law.  If 
the  contract  grows  immediately  out  of,  or  is  connected  with  an  illegal 
or  immoral  act,  a  court  of  justice  will  not  enforce  it."  In  the  case 
of  Saxon  v.  Wood  (Ind.  App.),  30  N.  E.  797,  where  the  complaint 
alleged  "  that  defendant,  who  was  a  suitor  of  plaintiff,  an  unmarried 
woman,  solicited  her  to  have  sexual  intercourse  with  him,  and  on 
her  refusal,  agreed  that  if  she  would  yield  to  his  wishes,  and  thereby 
became  pregnant,  he  would  at  once  marry  her;  that  in  consideration 
of  such  agreement,  to  which  she  consented,  plaintiff  yielded  to  de- 


ILLEGAL   CONSIDERATION.  7 

fendant's  solicitations,  and  did  have  sexual  intercourse  with  the 
defendant,  from  which  pregnancy  resulted,  and  from  which  a  child 
was  born  to  plaintiff,  and  the  defendant,  on  her  request  to  fulfil  his 
agreement,  refused  to  marry  her," — it  was  held  that  the  action 
would  not  lie,  the  contract  being  based  on  an  immoral  considera- 
tion. Judge  Black,  in  delivering  the  opinion  of  the  appellate  court 
of  Indiana,  in  that  case,  cites  with  approval  what  has  above  been 
quoted  from  Kent's  Commentaries,  and  a  number  of  other  authori- 
ties on  the  same  line. 

In  the  case  of  Hanks  v.  Nagle  (decided  by  the  Supreme  Court 
of  California),  54  Cal.  51,  which  was  an  action  for  a  breach  of 
promise  of  marriage  similar  in  many  respects  to  the  case  at  bar,  the 
plaintiff  testified,  in  effect,  that  the  defendant  promised  to  marry  her 
if  she  surrendered  her  person  to  him,  and  that  she  thereupon  con- 
sented. The  court  held  that  promise  was  void  on  account  of  the 
immorality  of  the  consideration,  the  court  saying,  in  its  opinion, 
that  "  upon  well-settled  principles  the  plaintiff  should  not  have 
recovered  on  a  contract  of  this  character,  as,  being  a  contract  for 
illicit  cohabitation,  it  is  tainted  with  immorality."  Citing  Story  on 
Cont.  sec.  458,  and  Steinfdt  v.  Levy^  16  Abb.  N.  S.  26.  In  the  lat- 
ter case,  which  was  decided  by  the  Supreme  Court  of  New  York, 
Chief  Justice  Neilson,  in  discussing  the  nature  of  the  contract  sued 
on,  says:  "It  is  hardly  necessary  to  say  that  a  contract  thus 
grossly  immoral  would  not  support  the  action."  "  The  learned  pre- 
siding judge  [of  the  court  below]  seems  to  have  had  in  view  the  rule 
that  where  a  contract  is  founded  on  two  considerations,  one  of  which 
is  merely  void,  but  not  vicious,  and  the  other  good,  the  contract  is 
binding  to  the  extent  of  the  good  consideration.  He  ruled  that  if, 
in  fact,  mutual  concurrent  provisions  to  marry  were  a  part  of  the 
consideration,  the  plaintiff  could  recover.  It  does  not  seem  to  have 
occurred  to  him  that  such  a  rule  would  tend  to  legalize  contracts  for 
prostitution,  or  that  the  principle  in  view  is  never  applied  to  a  con- 
tract tainted  with  immorality.  Courts  of  justice  will  not  aid  the 
illicit  or  corrupt  arrangement,  or  sift  one  part  of  it  to  save  the  other 
part." 

The  learned  counsel  for  defendant  in  error  cites  this  case  as 
authority  for  his  contention  that  instructions  i  and  2  were  not  appli- 
cable to  the  case  at  bar,  because  there  was  a  promise  of  marriage,  inde- 
pendent of  the  promise  made  in  consideration  of  sexual  intercourse; 
but  the  case  of  Steinfelt  v.  Levy  sustains  the  doctrine  laid  down  in 
Hanks  V.  Nagle,  and  the  other  authorities  above  cited.  Moreover, 
we  shall  see,  later  on,  that  the  evidence  does  not  show  a  promise  in 
the  case  at  bar,  by  the  plaintiff  in  error,  to  marry  the  defendant  in 


8  CONTRACT   TO    MARRY. 

error,  independent  of  the  promise  to  marry  her  if  she  would  have 
sexual  intercourse  with  him,  and  became  pregnant.  The  cases  of 
Kurtz  V.  Frank,  76  Ind.  594,  and  Clark  v.  Pendleton,  20  Conn.  495, 
are  also  cited  by  counsel  for  defendant  in  error,  but  they  do  not 
apply  to  the  case  at  bar.  In  the  first  of  these  cases  the  man  prom- 
ised to  marry  the  woman  in  September  or  October,  if  they  could 
agree  and  get  along  and  be  true  to  each  other,  and  that  if  she  be- 
came pregnant  from  their  intercourse  he  would  marry  her  immedi- 
ately. She  became  pregnant  in  July,  but  he  then  refused  to  marry 
her.  The  court  held,  upon  the  particular  facts  in  that  case,  that  the 
illicit  intercourse  did  not  so  enter  into  the  consideration  as  to  ren- 
der the  agreement  void ;  that  an  action  for  the  breach  accrued  at 
once.  The  real  point  decided  was  that  the  plaintiff  could  maintain 
her  action  upon  the  defendant's  refusal  to  marry  her  after  pregnancy, 
without  waiting  until  the  time  fixed  upon  for  the  marriage  by  the 
original  agreement.  We  think  that  instructions  Nos.  i  and  2  cor- 
rectly propounded  the  law. 

It  only  remains  to  be  determined  whether  the  instructions  are 
relevant  to  the  testimony  in  the  case.  Instructions  founded  on  evi- 
dence in  the  case,  and  consistent  with  the  law,  are  proper,  and  should 
be  given;  but  otherwise,  where  they  have  no  basis  in  the  evidence. 
Moo7i  s  Adtnr  v.  Railroad  Co.,  78  Va.  745;  Priest  v.  Whitaker,  Id. 
151;  Birch  V.  Linton,  Id.  584;  Rosenbaums  v.  Wceden,  18  Grat.  785. 

The  testimony  of  the  plaintiff  (defendant  in  error)  is  as  follows: 
On  examination  in  chief  she  says  that  these  improper  relations 
(illicit  intercourse)  commenced  in  July,  1890;  that  they  occurred 
afterwards,  and  continued  up  to  the  last  of  March,  1892.  "  He 
said  that  he  was  going  to  marry  me  if  1  would  consent.  He  often 
made  that  statement.  Q.  Were  you  engaged  to  him  at  the  time 
of  the  first  act  of  improper  intercourse,  in  July,  1890  ?  A.  I  asked 
him  if  he  would  be  true  to  his  promise,  and  he  said  that  he  would; 
that  he  was  going  to  marry  me  anyway.  Q.  Did  he  say  anything 
about  marrying  you  the  last  time  your  relations  with  him  were 
improper,  in  March,  1892  ?  A.  He  said  that  he  would  be  true  to  his 
promise."  On  cross-examination  she  says  that  nothing  was  ever 
said  about  the  time, —  "  only  he  said,  if  I  got  into  trouble,  he  would 
marry  me.  Q.  You  mean  in  a  family  way  ?  A.  Yes,  sir.  Q.  And 
you  were  satisfied  with  this  arrangement  ?  A.  Yes,  sir.  Q.  When 
did  he  tell  you  this  ?  A.  He  told  me  in  the  first  beginning,  in  July, 
1890.  He  promised  me  this  the  first  time,  and  he  promised  me 
afterwards."  Then  in  answer  to  the  question  propounded  by  the 
court,  "  You  say  the  first  time  Burke  had  intercourse  with  you  he 
promised  to  marry  you  ?  "  she  answers,  "  Yes,  sir."     And  then,  on 


ILLEGAL    CONSIDERATION.  9 

re-examination,  she  stated,  "  that  when  the  first  act  of  intercourse 
took  place  Burke  said  he  was  going  to  miirry  her;  that  she  asked  him 
when  he  was  going  to  marry  her,  and  he  said  '  when  she  got  in 
trouble.'     He  said  he  was  going  to  marry  me  anyway." 

This  is  substantially  all  the  testimony  as  to  the  promise  of  marriage, 
or  the  seduction,  and  it  will  be  noted  that  the  plaintiff  said  nothing 
as  to  any  promise  (or  engagement)  of  marriage  prior  to  the  first  act 
of  illicit  intercourse,  in  July,  1890.  On  the  contrary  she  says,  in 
answer  to  the  cross  question,  "  Was  anything  said  about  getting 
married  between  June,  1889  (the  first  time  she  met  him),  and  July, 
1890?"  "He  expressed -his  affections  that  way.  We  were  not 
particularly  engaged."  It  appears,  therefore,  that  the  question 
was  directly  raised  by  the  evidence,  whether  or  not  this  alleged 
promise  of  marriage  was  made  in  consideration  of  sexual  inter- 
course, or  upon  condition  that  she  became  pregnant,  which  ques- 
tion was  to  be  determined  by  the  jury,  and  the  defendant  had  a 
right  to  have  the  jury  instructed  as  to  the  law  that  was  to  guide 
them  in  determining  that  question;  and  as  instructions  Nos.  i  and 
2  correctly  propounded  the  law,  they  should  have  been  given  to  the 
jury.     The  refusal  to  give  these  instructions  was  error. 

The  defendant  also  asked  the  court  to  instruct  the  jury  as  follows: 
Instruction  No.  3.  "  The  jury  are  instructed  that  if  they  believe 
from  the  evidence  that  no  day  was  fixed  for  the  marriage,  the  plain- 
tiff must  prove  that  she  offered  to  fix  the  time  and  place  of  marriage, 
and  that,  in  default  of  such  offer  to  fix  the  time  and  place  of  the 
marriage,  there  is  no  breach  of  the  contract,  and  the  plaintiff  cannot 
recover."  In  the  abstract  this  instruction  embodies  the  law,  but  we 
do  not  think,  upon  the  testimony  in  this  case  that  it  applies.  Where 
one  repudiates  his  promise  and  declares  that  he  will  not  be  bound  by 
it,  the  party  not  in  default  need  not  wait  for  the  time  of  performance 
to  arrive,  and,  where  the  engagement  is  general,  need  not  request 
the  fulfillment  of  the  promise,  but  may  sue  at  once.  2  Am.  &  Eng. 
Enc.  of  Law,  524,  and  cases  cited.  The  evidence  here  is  that 
the  defendant  denied  171  toto  the  alleged  promise  of  marriage  be- 
fore this  action  was  brought.  The  instruction  was,  therefore,  prop- 
erly refused. 

Judgment  in  this  case  must  be  set  aside  and  annulled,  and  the  case 
remanded  to  the  Circuit  Court  of  Rockingham  county  for  a  new 
trial,  to  be  had  in  accordance  with  this  opinion. 


lO  CONTRACT   TO    MARRY. 


KELLEY  V.  RILEY. 

io6  Mass.   339. —  1871. 

Contract  for  breach  of  promise  of  marriage.  The  declaration 
did  not  allege  special  damage. 

At  the  trial  in  the  Superior  Court,  before  Judge  Brigham,  C.  J., 
evidence  was  introduced  tending  to  show  that  the  defendant  was  a 
married  man  at  the  time  of  the  promise.  The  defendant  requested 
the  judge  to  rule  that,  if  the  defendant  was  married  at  the  time  of 
the  promise,  the  action  could  not  be  maintained;  but  he  declined  so 
to  rule,  and  ruled  that  the  action  could  be  maintained,  although  the 
defendant  was  married  at  the  time  of  the  promise,  if  the  plaintiff  was 
ignorant  thereof. 

The  plaintiff  offered  evidence  tending  to  show  that,  induced  by 
the  defendant's  promise  of  marriage,  she  submitted  to  sexual  inter- 
course with  him,  and  that  he  got  her  with  child,  of  which  she  had 
been  delivered  and  which  was  now  living.  The  defendant  objected 
to  the  admission  of  this  evidence;  but  the  judge  admitted  it,  as 
affecting  the  measure  of  damages. 

In  submitting  the  case  to  the  jury,  the  judge  instructed  them  as 
follows: 

"  Promises  of  marriage,  not  often  being  made  in  the  presence  of 
witnesses  or  in  writing,  have  usually,  in  cases  of  this  nature,  been 
proved  by  circumstantial  evidence.  As  the  promise  of  the  plaintiff 
is  the  consideration  of  the  promise  of  the  defendant,  both  must  be 
proved  in  order  to  support  the  action;  and  each  promise  maybe 
established  by  the  same  species  of  proof;  and  the  con'duct  and 
deportment,  as  well  as  the  language  of  the  parties,  towards  each 
other,  may  furnish  satisfactory  evidence  of  the  fact  that  a  mutual 
promise  of  marriage  has  been  made  between  them,  that  is,  a  promise 
of  marriage  by  one  and  a  corresponding  promise  of  marriage  by  the 
other. 

"  In  determining  what  sum  of  money  would  reasonably  indemnify 
and  compensate  the  plaintiff  for  a  breach  of  the  defendant's  contract 
with  her,  the  jury  may  consider,  in  addition  to  her  expenditure  in 
preparing,  the  disappointment  of  her  reasonable  expectations,  and 
inquire  what  she  has  lost  by  her  disappointment,  and  for  that  pur- 
pose consider  among  other  things  what  would  be  the  money  value  or 
worldly  advantage  (separate  from  considerations  of  sentiment  and 
affections)  of  a  marriage  which  would  give  her  a  permanent  home, 
and  the  advantage  of  such  a  domestic  establishment  as  would  be 
suitable  to  her  as  the  wife  of  a  person  of  the  defendant's  estate  and 


ILLEGAL   CONSIDERATION.  II 

Station  in  life.  The  jury  ought  also  to  consider  whether  her  affec- 
tions were  in  fact  implicated,  and  whether  she  had  become  attached 
to  the  defendant,  and  if  such  was  the  fact,  the  wound  and  injury  to 
her  affections  would  be  an  additional  element  in  the  computation  of 
her  damage;  and  also  to  consider  whatever  mortification,  pain  or 
distress  of  mind  she  suffered,  resulting  from  the  discovery  of  the 
defendant's  inability  to  marry,  by  reason  of  his  living  wife,  or  his 
refusal  to  marry  her  within  a  reasonable  time  after  the  contract  was 
made  between  them,  if  he  was  not  disabled  from  doing  so  by  reason 
of  a  living  wife.  And  if,  while  the  parties  were  mutually  promised 
in  marriage,  and  intending^  and-  expecting  marriage  in  a  short  time, 
the  defendant  solicited,  in  consideration  of  such  intention  and  expec- 
tation, and  the  plaintiff  permitted,  in  consideration  of  such  expecta- 
tion and  intention,  sexual  intercourse  with  her,  whereby  she  became 
pregnant  with  a  child,  which  was  born  alive,  and  is  now  living,  these 
facts  may  be  considered  by  the  jury  in  computing  damages,  so  far  as 
they  tend  to  aggravate  and  increase  the  disappointment,  mortifica- 
tion, pain  or  distress  of  mind,  which  she  has  suffered  by  reason  of 
the  defendant's  breach  of  contract." 

A  verdict  for  the  plaintiff  was  returned  September  23,  1870,  and 
the  defendant  alleged  exceptions;  on  September  27  the  plaintiff 
moved  for  judgment;  on  October  i  the  judge  extended  the  time  for 
filing  the  exceptions  till  October  3,  on  which  day  they  were  filed, 
and  on  the  same  day,  a  few  hours  afterwards,  the  defendant  died. 
The  plaintiff  then  asked  for  judgment  on  her  motion,  and  contended 
that  the  defendant's  exceptions  ought  not  to  be  allowed,  but  on 
October  14  the  attorney  who  appeared  for  the  defendant  at  the  trial 
presented  the  exceptions  for  allowance,  and  on  October  17  the  judge 
allowed  them.  The  defendant  died  intestate,  and  no  steps  to- 
wards taking  out  administration  on  his  estate  were  had  before  the 
filing  [the  allowance  ?]  of  the  exceptions.  To  the  refusal  of  the 
judge  to  grant  her  motion,  and  to  his  allowance  of  the  defendant's 
exceptions,  the  plaintiff  alleged  exceptions. 

Colt,  J.  Both  parties  present  exceptions.  The  defendant  died 
after  his  exceptions,  taken  during  the  trial  of  the  case  to  the  jury, 
were  filed  in  the  court  below,  and  before  they  were  allowed  by  the 
presiding^  judge.  The  action  could  not  be  continued  to  summon  in 
the  administrator,  because,  as  no  special  damage  is  alleged,  it  does 
not  survive.  The  authority  of  the  attorney  employed  by  the  defend- 
ant, of  course,  terminated  with  his  death.  Stehhins  v.  Palmer, 
I  Pick.  71;  Smith  v.  Sherman,  4  Cush.  408.  The  plaintiff  under 
these  circumstances  excepts  both  to  the  allowance  of  the  defendant's 
exceptions,  and  the  refusal  of  the  judge  to  order  judgment  on  th/» 


12  CONTRACT    TO    MARRY. 

verdict,   upon  her  motion,  which   was  filed   l)efore   the  defendant's 
death. 

As  a  matter  of  practice,  at  common  law,  as  well  as  under  the  pro- 
visions of  the  Gen.  Sts.  c.  133,  sec.  7,  and  c.  115,  sec.  14,  judgment 
will  be  entered  on  the  verdict  on  motion,  as  of  a  preceding  day  or 
term  of  the  court,  whenever  an  action,  continued  or  postponed  for 
the  purpose  of  obtaining  a  disposition  thereof,  which  may  relieve  a 
dissatisfied  party  from  a  verdict,  would  otherwise  fail  by  the  death 
of  a  party  to  it.  So,  if  the  death  occur  after  verdict,  delay  during 
the  time  taken  for  the  argument  of  law  questions  upon  which  the 
validity  of  it  depends,  or  for  advisement  thereon,  will  not  be 
suffered  to  deprive  one  of  the  benefits  to  which  he  appears  to  have 
been  justly  entitled  under  it.  Springfield  v.  Worcester,  2  Gush.  52; 
Currier  \.  LaiveH,  16  Pick.  170. 

This  case  comes  within  these  rules.  The  defendant's  exceptions 
were  presented  and  filed  before  the  death  of  the  defendant,  judg- 
ment on  the  verdict  was  thereby  delayed,  and  the  court  in  now  ren- 
dering judgment  will  go  back  to  the  time  when  it  would  have  been 
rendered  if  no  action  had  been  taken  to  prevent  it. 

This  all  proceeds  on  the  supposition  that  the  verdict  is  one  which 
is  open  to  no  legal  objection.  When  objections  are  suggested  by 
ex'ceptions  regularly  taken  and  filed,  then  it  is  manifestly  proper 
that  the  order  for  judgment,  as  of  a  prior  day  or  term,  should  not 
be  made  until  the  exceptions  are  regularly  disposed  of  by  a  decision 
in  favor  of  the  verdict.  And  although  technically  there  can  be  no 
appearance  for  a  deceased  party,  yet  this  court  will  pass  upon  the 
questions  so  submitted,  and  hear  suggestions  as  to  their  merits, 
from  any  one  who  holds  the  office  of  an  attorney  within  the  court. 

The  exceptions  of  the  defendant  were  therefore  properly  allowed, 
and  the  motion  for  judgment  properly  denied,  for  the  time,  as  pre- 
mature. 

It  remains  to  dispose  of  the  exceptions  of  the  defendant,  taken  at 
the  trial.  The  court  was  asked  to  rule  that,  if  the  defendant  was  a 
married  man  at  the  time  of  his  promise,  the  plaintiff  could  not  be 
injured  by  a  failure  to  perform,  and  though  she  had  no  knowledge 
of  the  fact  at  the  time,  could  not  maintain  this  action.  'I'his  was 
properly  refused.  The  defendant  is  not  permitted  to  escape  respon- 
sibility on  the  ground  of  his  present  legal  inability  to  perform  a 
promise  of  marriage  to  an  innocent  party.  The  damages  to  the 
plaintiff  are  certainly  not  diminished  by  the  consideration  that  the 
promise  was  made  under  such  circumstances.  The  strict  rule  that  a 
consideration  to  support  a  promise  is  insufficient  if  its  performance 
is  utterly  and   naturally  impossible,  is  met  by  the  suggestion,  that 


ILLEGAL    CONSIDERATION.  I3 

even  if  the  future  performance  here  is  to  be  treated  as  utterly  im- 
possible, yet  the  detriment  or  disadvantage  which  must  necessarily 
result  to  the  plaintiff  in  relying  for  any  time  on  the  promise  affords 
sufficient  consideration  to  support  the  defendant's  contract.  2  Par- 
sons on  Contracts  (5th  ed.),  67;    Wild  v.  Harris,  7  C.  B.  999. 

The  defendant  also  insists  that  the  evidence  of  seduction  was  not 
admissible  in  aggravation  of  damages.  But  in  a  recent  case  the  con- 
trary has  been  held  by  this  court,  on  the  ground  that  compensation 
to  the  plaintiff  for  the  injury  she  has  received  by  the  breach  of  the 
contract  cannot  be  fully  reached  without  taking  into  account  the 
situation  in  which  she  is  left  by  the  defendant's  act.  Sherman  v. 
Rawson,  102  Mass.  395.  The  instructions  actually  given  by  the 
learned  judge,  as  to  the  nature  of  the  evidence  by  which  the  promise 
was  to  be  proved,  and  the  elements  to  be  considered  by  the  jury  in 
estimating  the  damages,  were  full  and  accurate. 

The  defendant's  exceptions  are  accordingly  overruled,  and  the 
plaintiff  may  now  therefore  renew  her  motion  in  the  Superior  Court, 
where  the  case  remains,  that  judgment  be  rendered  as  of  the  day 
and  term  when  the  verdict  was  returned. 

Ordered  accordingly.  1 


POLLOCK  V.  SULLIVAN. 
53  Vt.   507.— 1881. 

Action  on  the  case.  Heard  on  demurrer  at  the  September  Term, 
1880,  RoYCE,  J.,  presiding.  The  court, //-<?/(9rwa,  sustained  the 
demurrer. 

Redfield,  J.  The  declaration  counts  tortwise,  for  fraud  and 
deceit,  whereby  the  plaintiff  has  suffered  injury.  It  avers,  in  sub- 
stance, that  the  defendant,  professing  to  be  an  unmarried  man,  paid 
his  addresses  to  the  plaintiff  and  offered  himself  in  marriage  to  her, 
and  that  she,  believing  his  pretentions  and  representations  to  be 
true,  accepted  his  proffer,  and  agreed  to  marry  him;  and  that,  in 
fact,  defendant  at  that  time  was  living  with  his  wife  and  children  at 
St.  Albans;  and  thereby  she  was  defrauded  and  injured.  To  this 
declaration  the  defendant  files  a  general  and  special  demurrer. 

We  have  not  carefully  examined  the  several  counts,  to  find  whether 
some  of  them  may  not  be  technically  defective  under  special  demur- 
rer, but  we  think  some  of  them  may  withstand  that  assault.  The 
plaintiff  avers  fraud,  and  damages  thereby  occasioned.  Fraud  occa- 
sioning damage  and  injury,  is  actionable;  otherwise  persons  may 
suffer  injury  by  the  wrongful  acts  of  others,  and  the  law  afford  no 

'  Upon  the  measure  ol  damages,  see  also  Coohdge  v.  Neat,  129  Mass.  146. 


H 


CUNTRACr    K)    MARRV 


redress.  This  would  bring  d.  laws  of  the  land  into  contempt.  The 
demurrer  confesses  the  truth  of  the  facts  alleged  in  the  declaration. 
And  we  think  the  facts  averred  being  true,  are  actionable.  The  facts 
alleged  show  that  the  plaintiff  is  wanting  in  discretion,  if  not  in  some 
of  the  more  cardinal  virtues;  but  that  is  all  for  the  jury,  and  outside 
the  law  of  the  case.  On  demurrer  to  her  averments  and  complaints, 
she  is  to  be  regarded  as  an  innocent  person,  deceived  and  defrauded. 

The  defence  claims  that  the  action  should  have  been  assumpsit  for 
the  breach  of  the  contract.  The  adjudged  cases  seem  to  establish 
that  the  innocent  party,  in  such  case,  may  sustain  an  action  for  a 
breach  of  the  promise  of  marriage;  that  the  other  party  will  not  be 
permitted  to  allege  that  he  cannot  perform  //is  contract  because  he 
had  a  wife  when  he  agreed  to  marry  another.  If  such  action  was 
brought,  and  the  defendant  should  be  foolhardy  enough  to  offer  to 
perform  his  contract,  the  plaintiff  must  desist,  or  subject  herself  to 
a  criminal  prosecution.  The  essential  wrong  to  the  plaintiff  is,  not 
that  she  has  not  attained  a  husband,  as  she  expected;  but  that  she 
spent  her  time  and  money  in  arrangements  and  preparation  for  mar- 
riage with  the  defendant,  when,  in  fact,  he  had  then  and  now  a  wife, 
and  was  deluded  into  this  relation  by  the  fraud  and  falsehood  of  the 
defendant,  and  by  such  deception  and  fraud  she  has  suffered  griev- 
ously in  property  and  reputation.  This  action  is  appropriate  to 
redress  this  species  of  wrong.  Whether  the  plaintiff  has  a  character 
that  can  be  impaired,  or  lost,  can  be  ascertained  in  the  proper  forum 
before  a  jury.  Hoivard  v.  Gould,  28  Vt.  523;  i  Hil.  on  Torts,  p.  3, 
note  a;  Sedgw.  on  Dam.  p.  48,  and  cases  there  cited;  Chit,  on  Cont. 
loth  Am.  ed.,  p.  750. 

The  result  is,  the  judgment  of  the  County  Court  is  reversed,  and 
the  demurrer  overruled.  The  defendant,  at  the  hearing,  asked 
leave  to  replead,  in  case  the  judgment  should  be  against  him;  the 
leave  will  be  granted,  on  the  usual  terms,  and  the  case  is  remanded.* 


Reality  of  Consent. 

VAN   HOUTEN  v.   MORSE. 
162  Mass.   414. —  1894. 
Contract,  for  breach  of  promise  of  marriage.     At  the  trial  in 
this  court,   before  Barker,   J.,   the  jury  returned  a  verdict  for  the 
plaintiff;  and  the  defendant  alleged  exceptions. 

Morton,  J.     The  defence  principally  relied  on  in  this  case  is  that 
the  promise  which  the  jury  have  found  was  made  was  induced  by 

'  Accord,  Blattmacher  v.  Saal,  2q  Barb.  22.     No  action  will  lie  if  plaintiff  knew 
defendant  had  a  divorced  wife  living,  Haviland  v.  I/alisUad,  34  N.  Y.  643. 


REALITY   OF   CONSENT.  1 5 

fraudulent  conduct  and  representations  and  concealments  on  the 
part  of  the  plaintiff  with  reference  to  various  matters  relating  to  her 
past  life,  to  her  parentage  and  family,  and  to  her  position  and  cir- 
cumstances. The  defendant  contends  that  the  instructions  of  the 
court  as  to  what  constituted  fraudulent  concealment  were  not  suffi- 
cient, and  that  certain  requests  which  he  made  should  have  been 
given. 

The  jury  were  correctly  instructed  that  it  was  not  the  duty  of  a 
party,  before  making  or  accepting  an  offer  of  marriage,  to  communi- 
cate all  the  previous  circumstances  of  his  or  her  life;  and  that  the 
parties  would  be  bound,  if  they  became  engaged  without  making  any 
investigations,  and  without  receiving  any  assurances  or  representa- 
tions which  led  to  the  engagements,  even  though  matters  were  dis- 
covered subsequently  which,  if  known  at  the  time,  would  have 
prevented  the  engagement,  unless  they  were  such  as  gave  a  right  to  the 
other  party  to  terminate  the  contract  upon  their  discovery.  Whether 
the  only  matters  which  would  give  the  defendant  such  a  right  were 
those  relating  to  the  chastity  of  the  plaintiff,  we  have  no  need  now 
to  consider.  No  question  was  made  by  him  as  to  the  plaintiff's 
chastity;  and  the  fact,  if  it  was  a  fact,  that  the  plaintiff  had  some 
negro  blood  in  her  veins,  or  that  her  motives  were  mercenary,  or 
that  there  was  a  want  of  affection  on  her  part,  or  that  there  was 
incompatibility  resulting  from  disparity  of  age,  difference  in  charac- 
ter and  disposition,  and  other  causes,  which,  apart  from  fraud,  were 
the  things  relied  on  by  the  defendant,  would  not  justify  him  as  mat- 
ter of  law  in  breaking  the  contract.  Reynolds  v.  Reynolds^  3  Allen, 
605;  Coolidgev.  Neat,  129  Mass.  146;  Gring  v.  Lerch,  112  Penn.  St. 
244;  Berry  v.  Bake/nan,  44  Me.  164;  Leeds  v.  Cook,  4  Esp.  256; 
Bakers.  Cartwright,  10  C.  B.  (N.  S.)  124;  Beachey  v.  Brown,  El.,  Bl. 
&  El.  796;  Young  V.  Murphy,  3  Bing.  N.  C.  54;  Bench  v.  Merrick, 
I  C.  &  K.  463.  See  also  2  Am.  &  Eng.  Ency.  of  Law,  525,  526, 
for  collection  of  cases.  But  in  respect  to  what  would,  in  view  of 
the  circumstances  of  this  case,  be  such  concealment  on  the  part  of 
the  plaintiff  as  to  constitute  fraud,  we  think  that  the  instructions 
hardly  went  far  enough,  or  at  least  that  it  was  possible  that  the  jury 
may  not  have  understood  them  as  they  were  perhaps  intended  by  the 
court  to  be  understood.  The  jury  were  instructed  that  if  the 
engagement  was  brought  about,  in  whole  or  in  part,  by  false  repre- 
sentations, by  concealments  upon  matters  which  were  inquired 
about,  or  which  the  party  had  by  universal  consent  the  right  to 
know,  then  the  contract  could  not  be  enforced.  And  later  they 
were  told  that  the  defendant  was  not  bound  if  the  contract  was  pro- 
cured by  deception  or  by  fraud,  or  by  concealment  which  was  fraud, 


1 6  CONTRACT    TO    MARRY, 

but  that  there  was  no  fraudulent  concealment  by  simply  not  commu- 
nicating information;  that  a  promise  would  be  valid,  though  made  in 
complete  ignorance  of  the  antecedents  of  the  parties,  but  that  there 
was  a  different  doctrine  where  matters  were  inquired  about;  and 
that,  if  either  party  made  inquiries  of  the  other  with  reference  to 
family,  position,  or  circumstances  in  the  life  or  experience  of  the 
other,  then,  if  wilful  false  statements  were  made  with  reference  to 
any  of  those  things  which  might  fairly  be  considered  as  entering  into 
the  judgment  of  either  party  as  to  whether  that  party  would  or  would 
not  enter  into  a  contract  of  marriage,  then  there  would  be  a  false 
representation.  "That  is,"  the  court  continued,  "a  statement 
which  the  party  knows  is  false,  or  makes  as  true  of  his  or  her  own 
knowledge,  when  it  is  in  fact  untrue,  and  without  knowing  that  it  is 
true,  or  if  there  is  concealment  of  any  such  particular  which  is  in- 
quired about,  those  circumstances  will  be  sufficient  to  make  void  a 
contract  entered  into  in  consequence  and  relying  upon  them,  unless 
they  are  of  such  a  nature  that  no  man  would  be  justified  in  the  exer- 
cise of  any  reasonable  care  in  relying  upon  these  statements." 
These  instructions  might,  and  probably  would,  lead  the  jury  to  infer 
that  concealment  on  the  part  of  the  plaintiff  would  not  consti- 
tute fraud,  except  as  to  matters  that  were  inquired  about  by  the 
defendant. 

But  we  think  that  if  the  plaintiff  undertook,  without  inquiry  from 
the  defendant,  to  state  facts  relating  to  any  circumstances  in  her 
history  or  life,  or  to  her  parentage  or  family,  or  to  her  former  or 
present  position,  which  were  material,  she  was  bound  not  only  to 
state  truly  the  facts  which  she  narrated,  but  she  was  also  bound  not 
to  suppress  or  conceal  any  facts  which  were  necessary  to  a  correct 
understanding  on  the  part  of  the  defendant  of  the  facts  which  she 
stated;  and  if  she  wilfully  concealed  and  suppressed  such  facts  and 
thereby  led  the  defendant  to  believe  that  the  matters  to  which  such 
statements  related  were  different  from  what  they  actually  were,  she 
would  be  guilty  of  a  fraudulent  concealment.  Kidney  v.  Stoddard. 
7  Met.  252;  Short  V.  Currier,  153  Mass.  182;  Buriis  v.  Bockray,  156 
Mass.  135,  137;  Prentiss  v.  Russ,  16  Me.  30;  Atwood  v.  Chapman, 
68  Me.  38,  40,  41;  Potts  V.  Chapin,  133  Mass.  276;  Clark  v.  Baird, 
5  Seld.  183;  Bro7vn  v.  Montgomery,  20  N.  Y.  287;  De^m  v.  Brandt,  53 
N.  Y.  462;  Hill  v.  Gray,  i  Stark.  434;  Stevens  v.  Adamson,  2  Stark. 
422;  Arkwrightv.  Newbold,  17  Ch.  D.  301,  317,  318;  Aortson  v .  Ridg- 
way,  18  III.  23.     Add.  Torts,  Wood's  Edition,  1205. 

Mere  silence  on  the  part  of  the  plaintiff,  without  inquiry  by  the 
defendant,  though  resulting  in  the  concealment  of  matters,  which 
would  have  prevented  the  engagement  if  known,  would  not  consti- 


REALITY    OF   CONSENT.  1/ 

tute  fraud  on  "her  part.  Potts  v.  Chapin^  ubi  supra.  But  a  partial 
and  fragmentary  disclosure,  accompanied  by  the  wilful  concealment 
of  material  and  qualifying  facts,  would  be  as  much  of  a  fraud  as 
actual  misrepresentation,  and  in  effect  would  be  misrepresentation. 
Ark^vright  v.  JVewbold,  ubi  supra. 

There  was  evidence  that  the  plaintiff  represented  to  the  defendant 
before  the  engagement  that  she  had  been  previously  married,  and 
had  lived  with  her  husband  in  Spokane  and  other  places  five  or  six 
years,  and  that  a  few  weeks  before  she  left  Spokane  for  Boston  she 
had  obtained  a  divorce  from  him  on  account  of  his  bad  conduct  and 
cruelty  to  her.  So  far  as  appears  from  the  exceptions,  that  was  all 
that  the  plaintiff  told  the  defendant  about  the  divorce  before  the 
engagement.  But  there  was  testimony  tending  to  show  that  at  the 
same  time  she  procured  a  divorce  from  her  husband  he  procured  one 
from  her,  and  that  the  cross  bill  filed  by  him  in  answer  to  her  com- 
plaint, and  on  which  his  divorce  was  granted,  charged  her  with  being 
a  woman  of  violent  and  ungovernable  temper,  and  of  jealous,  revenge- 
ful and  vicious  disposition,  and  with  having,  within  two  weeks  after 
her  marriage,  commenced  a  systematic  course  of  violent,  abusive, 
and  cruel  conduct  towards  him,  which  finally  broke  down  his  health, 
and  compelled  him  to  leave  her.  He  also  charged  her  with  assault- 
ing him  with  a  carving  knife,  and  with  using  profane  epithets  in 
regard  to  himself,  his  relatives  and  friends,  and  alleged  numerous 
specific  acts  of  violence  and  passion. 

We  think  that  the  divorce  which  her  husband  obtained  from  the 
plaintiff  and  the  charges  contained  in  the  cross  bill  were  material 
facts,  and  that  if  the  plaintiff  knew  them  when  she  told  the  defendant 
that  she  had  obtained  a  divorce  from  her  husband  for  his  cruelty, 
and  wilfully  suppressed  them,  she  was  guilty  of  a  fraudulent  conceal- 
ment and  misrepresentation.  To  say  that  she  had  obtained  a  divorce 
from  her  husband  for  his  cruelty,  and  omit  all  reference  to  his 
divorce  and  the  grounds  on  which  he  obtained  it,  was  to  state  the 
matter  in  such  a  way  as  to  convey  a  different  impression  from  that 
which  would  have  been  conveyed  if  all  the  facts  had  been  stated,  and 
was  misleading.  Though  it  does  not  appear  very  clearly  from  the 
exceptions  whether  she  did  or  did  not  know  of  the  divorce  which 
her  husband  had  obtained  from  her,  and  of  the  charges  which  he 
made  in  his  cross  bill,  it  is  fairly  to  be  inferred  that  she  was  not 
ignorant  either  of  the  divorce  or  of  the  charges.  There  was  testi- 
mony tending  to  show  that,  when  the  defendant  informed  her  of 
them,  she  did  not  express  ignorance  of  them,  but  said  that  they  were 
not  true,  and  the  trial  seems  to  have  proceeded  on  the  assumption 
that  she  knew  of  them.  Moreover,  though  possible,  it  is  hardly 
fDoMESTic  Relations  —  2.I 


l8  CONTRACT   TO    MARRY. 

probable  that  she  was  unacquainted  with  the  fact  that  he  had  ob- 
tained a  divorce,  or  with  the  grounds  on  which  he  got  it. 

So  with  regard  to  her  parentage  and  family.  She  was  under  no 
obligation  to  tell  the  defendant  about  them  in  the  absence  of  inquiry 
by  him.  But  if  she  voluntarily  undertook  to  make  any  statements 
concerning  them,  she  was  bound  not  only  to  state  truly  what  she 
told,  but  also  not  to  suppress  or  conceal  facts  which  would  mate- 
rially qualify  those  which  she  stated.  If,  for  instance,  as  the  evi- 
dence tends  to  show,  she  told  the  defendant  that  her  father  and 
mother  were  both  of  the  best  white  families  in  Charleston,  South 
Carolina;  that  her  father  was  a  distinguished  lawyer;  that  her 
mother  was  equally  high  bred;  and  that  after  his  death  her  mother 
married  a  man  by  the  name  of  Smith,  with  which  marriage  her 
mother's  folks  were  dissatisfied,  and  that  on  that  account  the 
family  moved  to  California;  —  but  if  she  suppressed  the  fact  that 
Smith  was  a  colored  barber  and  an  octoroon  and  her  reputed 
father,  and  that  her  mother  had  negro  blood  in  her  veins,  and  was 
about  one-eighth  negro,  the  impression  as  to  the  standing  of  herself 
and  family,  and  the  credibility  of  her  statement  respecting  her  par- 
entage, would  or  might  be  quite  different  from  that  which  would  be 
likely  to  be  the  case  if  she  had  told  the  whole  truth.  These  facts,  if 
they  were  facts,  were  necessary  to  a  correct  understanding  of  the 
real  state  of  the  circumstances  of  her  family  and  of  her  previous 
history,  and  were  or  might  be  found  to  be  material ;  and  a  wilful  sup- 
pression of  them  on  her  part,  in  view  of  what  there  was  evidence  that 
she  told  would  constitute  or  might  be  found  to  constitute  a  fraud 
upon  the  defendant.      IVharton  v.  Leiuis,  i  C.  &  P.  529. 

The  defendant's  requests  did  not  state  the  la\v  with  entire  correct- 
ness, and  did  not  direct  the  attention  of  the  court  particularly  to  the 
effect  of  suppression  by  the  plaintiff  (jf  facts  which  would  materially 
modify  those  which  she  voluntarily  told  the  defendant  respecting 
the  divorce  and  her  parentage  and  family.  They  did,  however,  call 
for  instructions  as  to  what  would  constitute  fraudulent  concealment 
in  respect  to  those  matters,  and  it  is  evident  from  the  charge  that 
the  court  understood  them  to  do  so.  In  giving  its  instructions  the 
court  stated  the  law  in  reference  to  things  that  were  inquired  about 
in  such  a  manner  that  the  jury  might  infer  that  as  to  matters  not 
inquired  about  the  suppression  of  material  facts-would  not  constitute 
fraudulent  concealment.  As  to  an  important  phase  of  the  case  this 
was  erroneous,  and  the  jury  may  have  been  misled  by  it;  and 
though  the  defendant  did  not  call  the  attention  of  the  court  to  that 
aspect  of  the  case  any  more  than  to  what  would  constitute  fraudu- 
lent concealment,  in  case  inquiry  was  made,  we  think  that  the  whole 


REALITY   OF   CONSENT.  I9 

matter  was  fairly  within  the  scope  of  his  requests,  and  that  he  might 
well  assume  that  the  instructions  as  given  stated,  in  the  opinion  of 
the  court,  the  rules  of  law  properly  applicable  to  it.  Cork  v.  Blos' 
sofn,  ante,  330.  The  court  are  not  unanimous  in  their  view  of  the 
questions  presented  by  the  bill  of  exceptions,  or  in  their  construc- 
tion of  the  judge's  charge,  but  there  is  no  difference  of  opinion  with 
regard  to  the  principles  of  law  to  be  applied  to  the  case. 

Among  other  r'ulings  which  the  defendant  requested  was  the  fol- 
lowing: "  If  mutual  promises  to  marry  were  made,  and  the  defend- 
ant was  influenced  to  do  so  by  the  fraud  or  deception  of  the  plain- 
tiff as  to  her  life,  lineage,  character,  traits  of  character,  or  property, 
or  former  condition  of  life,  his  promise  does  not  bind  him. ' '  In  refer- 
ence to  this  the  court  said:  "  That  I  should  give  with  the  qualifica- 
tion which  I  have  made  generally  upon  the  subject.  I  think  there  is 
nothing  objectionable  in  that."  We  understand  that  by  "the  quali- 
fication "  referred  to  was  meant  what  the  court  had  said  previously 
in  regard  to  its  not  being  the  duty  of  a  party,  before  making  or  accept- 
ing an  offer  of  marriage,  to  communicate  all  the  previous  circum- 
stances of  his  or  her  life,  and  that  a  party  would  not  have  the  right  to 
terminate  a  contract  to  marry  on  the  ground  of  fraud,  upon  subse- 
quently discovering  matters  which,  if  seasonably  known,  might  have 
prevented  the  engagement,  though  not  sufficient  to  justify  a  party  in 
breaking  it  off.  As  thus  qualified  the  instruction  was  correct,  and  the 
defendant  had  no  proper  ground  of  exception.  But  we  do  not  think 
that  it  meets  the  objections  of  the  defendant  to  the  sufficiency  of 
the  charge  in  regard  to  what  constituted  fraudulent  concealment. 

The  exceptions  state  that  "  the  jury  were  instructed  at  length 
upon  the  law  applicable  to  actions  for  breach  of  promise  of  marriage, 
to  which  instructions  no  objection  was  made,  except  as  appears  by 
the  bill  of  exceptions."  We  do  not  understand  from  this  that  any 
instructions  on  the  matter  of  fraud  which  were  deemed  material 
upon  any  of  the  questions  raised  by  the  defendant  are  omitted  from 
the  bill  of  exceptions,  but  we  infer  that  all  of  the  instructions  perti- 
nent to  the  reqvaests  and  contentions  of  the  defendant  on  that  sub- 
ject are  included  in  the  exceptions. 

We  discover  no  error  in  the  instructions,  or  rulings  or  refusals  to 
rule,  or  in  the  admission  of  evidence,  or  in  the  conduct  of  the  trial, 
except  as  above  stated.     *     *     *     Exceptions  sustained.' 

'  "  If  a  man  ignorant  of  the  real  character  of  a  woman  enters  into  an  agree- 
ment of  this  nature  [to  marry]  and  afterwards  discovers  her  to  be  lewd  and  un- 
chaste, it  is  sufficient  justification  for  him  to  refuse  compliance  with  it."  —  Budd 
V.  Crea,  6  N.  J.  L.,  450,  455. 

For  disease  as  justification  for  breach  of  promise,  see  Shackleford  v .  Hamilton, 
93  Ky.  80.     (s.  c.  with  note,  15  L.  R.  A.  531.) 


20  CONTRACT   TO    MARRY. 

Survival  of  Actio)i  for  Breach  of  Promise. 

STEBBINS  V.   PALMER. 

I   Pick.   (Mass.)  71. —  1822. 

JuLi.\  Palmer,  the  respondent,  brought  an  action  for  breach  of 
promise  of  marriage  against  Benjamin  Stebbins,  who  died  while  the 
action  was  pending.  Nearly  two  years  after  his  death,  she  made 
application  to  the  judge  of  probate  representing- that  no  person  had 
taken  out  letters  of  administration  on  his  estate,  that  she  was  a 
creditor,  and  that  at  the  time  of  his  death  she  had  an  action  pend- 
ing against  him,  which  had  been  continued  from  time  to  time,  to 
enable  her  to  summon  in  any  person  who  should  be  appointed 
administrator;  and  praying  that  letters  of  administration  might  be 
granted  to  such  person  as  the  judge  should  think  proper.  It  was 
accordingly  decreed  that  letters  of  administration  should  be  granted. 
Marytta  Stebbins,  the  widow  of  Benjamin,  having  omitted  to  appeal 
from  this  decree  in  the  ordinary  way,  now  petitioned  the  court  for 
leave  to  enter  an  appeal,  pursuant  to  St.  1817,  c.  190,  sec.  8,  alleging 
that  her  omission  arose  from  mistake.  And  whether  justice  required 
a  revision  of  the  decree,  depended  on  the  question,  whether  the 
respondent  was  interested  as  a  creditor  in  the  estate  of  the  deceased. 

Wilde,  J.  [After  stating  the  grounds  on  which  the  court 
thought  it  reasonable  that  the  petitioner  should  be  permitted  to 
enter  her  appeal,  in  conformity  with  St.  1817,  c.  iyo,  sec.  8,  if  she 
could  show  that  justice  required  a  revision  of  the  decree,  he  pro- 
ceeded] : 

This  she  attempts  by  referring  us  to  the  grounds  on  which  the 
decree  is  founded,  which,  her  counsel  have  argued,  are  insufificient 
in  law  to  sustain  it.  They  contend,  that  no  one  interested  in  the 
estate  is  desirous  that  administration  should  be  granted,  and  that 
there  is  no  necessity  for  incurring  such  an  expense.  If  this  has 
been  made  to  appear,  the  decree  ought  to  be  reversed. 

Generally,  administration  ought  not  to  be  granted,  except  on  the 
application  of  some  one  entitled  to  administration,  or  who  is  inter- 
ested in  the  estate  to  be  administered  upon.  The  question  then  is, 
whether  the  respondent  is  interested  in,  or  has  any  claim  upon,  the 
estate  of  the  deceased.  At  the  time  of  his  decease  she  had  an  action 
against  him  pending  in  this  court,  founded  on  the  breach  of  a  prom- 
ise of  marriage;  and  if  this  action  by  law  survives,  thore  is  good 
ground  for  granting  letters  of  administration,  whether  strictly  speak- 
ing she  is  a  creditor  or  not;  for  in  such  case  justice  would  require 


SURVIVAL   OF   ACTION   FOR   BREACH    OF   PROMISE.  21 

that  administration  should  be  granted,  so  that  the  action  might  be 
prosecuted  to  final  judgment.  The  principal  question,  therefore,  is, 
whether  such  an  action  by  law  survives. 

The  maxim,  actio  personalis  tnoritur  cum  persona,  decides  nothing, 
for  it  is  admitted  that  it  is  not  applicable  generally  to  contracts ;  and, 
although  it  commonly  does  apply,  where  the  cause  of  action  is  a  tort, 
or  arises  ex  delicto,  yet  in  many  such  cases  the  tort  may  be  waived, 
and  in  an  action  founded  on  the  principles  of  civil  obligation,  dam- 
ages may  be  recovered  for  trespass.  Where  there  is  a  duty,  as  well 
as  a  wrong,  an  action  will  survive  against  the  executor.  He  is  respon- 
sible for  the  debts  of  the  deceased,  and  for  all  undertakings  and 
acts  that  create  a  debt,  as  far  as  there  are  assets.  And  it  seems  to 
make  no  difference,  whether  the  debt  be  certain  or  uncertain,  or 
whether  it  arises  from  a  promise  express  or  implied.  If  the  cause  of 
action  has  been  beneficial  to  the  testator,  the  executor  shall  be 
charged.  "Where,"  says  Lord  Mansfield,  "besides  the  crime, 
property  is  acquired  which  benefits  the  testator,  there  an  action  for 
the  value  of  the  property  shall  survive  against  the  executor;  but  if 
it  is  a  sort  of  injury  by  which  the  offender  acquires  no  gain  to  him- 
self at  the  expense  of  the  sufferer,  the  person  injured  has  only  a  repa- 
ration for  the  delictum  in  damages  to  be  assessed  by  a  jury."  Cowp, 
376.  The  distinction  seems  to  be  between  causes  of  action  which 
affect  the  estate  and  those  which  affect  the  person  only;  the  former 
survive  for  or  against  the  executor,  and  the  latter  die  with  the  person. 

According  to  this  distinction,  an  action  for  the  breach  of  a  prom- 
ise of  marriage  would  not  survive;  for  it  is  a  contract  merely  per- 
sonal ;  at  least  it  does  not  necessarily  affect  property.  The  principal 
ground  of  damages  is  disappointed  hope;  the  injury  complained  of 
is  violated  faith,  more  resembling  in  substance  deceit  than  fraud, 
than  a  mere  common  breach  of  promise.  The  damages  may  be,  and 
frequently  are,  vindictive;  and,  if  they  could  be  proved  against  the 
executor,  might  render  the  estate  insolvent,  to  the  loss  and  injury 
of  creditors.  For  these  and  other  reasons,  it  has  been  settled,  in 
England,  that  such  an  action  does  not  survive  for  an  executor.  If 
this  is  rightly  settled,  it  is  decisive,  for  the  law  is  unquestionably 
the  same,  whichever  party  may  die. 

The  case  of  Chamberlain  v.  Williamson,  2  M.  &  S.  408,  was  con- 
sidered as  an  action  of  the  first  impression;  which  shows  at  least 
what  the  law  was  supposed  to  be  before.  This  is  a  consideration  of 
no  small  weight,  which,  joined  to  the  principles  and  reasoning  of 
that  case,  is  entirely  convincing. 

The  respondent  has  laid  no  special  damages  in  her  declaration, 
and  has  not  averred  in  her  application  to  the  judge  of  probate  that 


22  CONTRACT   TO    MARRY. 

she  has  sustained  any;  if  she  has  any  proof  to  support  such  an  aver- 
ment, she  may  apply  anew  to  the  judge  of  probate,  and,  if  adminis. 
tration  should  be  granted,  may  commence  a  new  action.  Whether 
in  such  an  action  for  special  damages  she  would  be  allowed  to 
recover  full  damages  or  would  be  restricted  to  those  which  relate  to 
property,  we  do  not  now  determine.' 
Decree  of  judge  of  probate  reversed. 

'  See  also  Hayden  v.  Vreeland,  37  N.  J.  L.  372;  and  Kelley  v.  Riley,  supra.  In 
Wade  V.  Kalbfieisch,  58  N.  Y.  282,  the  court  says:  "  Although  in  form  this  action 
resembles  an  action  on  contract,  in  substance  it  falls  within  the  definition  of 
the  exception,  as  an  action  on  the  case  for  personal  injuries.  It  is  unnecessary 
to  classify  it.  It  is  properly  termed  sui  generis.  The  form  of  the  action  is  not 
material.  The  controlling  consideration  is  that  it  does  not  relate  to  property 
interests,  but  to  personal  injuries.  In  Zabriskie  v.  Smith,  13  N.  Y.  322,  Denio, 
J.,  in  delivering  the  opinion  of  the  court  specifies  this  as  an  action  where  the 
damage  consists  entirely  of  personal  suffering  and  cannot  therefore  be  revived.*" 


CHAPTER  II. 
CONTRACT    OF    MARRIAGE. 

Marriage  as  a  Contract. 

MAYNARD  v.   HILL. 
125  U.  S.   190. —  1887. 

[Reported  herein  at  p.  304.] 


Common  Law  Marriage. —  Requisites  of  Form. 
MEISTER  V.  MOORE. 

96  U.   S.   76.— 1877. 

Error  to  the  Circuit  Court  of  the  United  States  for  the  Western 
District  of  Pennsylvania. 

This  was  ejectment  brought  October  9,  1873,  by  Bernard  L. 
Meister,  for  the  possession  of  certain  lots  of  ground  in  Pittsburg,  Pa. 
Both  parties  claimed  under  William  Mowry;  the  plaintiff,  as  the 
alienee  of  the  alleged  wife  and  daughter  of  said  William,  and  the  de- 
fendants, as  the  vendees  of  his  mother,  in  whom  the  title  of  the 
property  vested,  if  he  died  unmarried  and  without  issue. 

Mr.  Justice  Strong  delivered  the  opinion  of  the  court. 

The  learned  judge  of  the  Circuit  Court  instructed  the  jury,  that, 
if  neither  a  minister  nor  a  magistrate  was  present  at  the  alleged 
marriage  of  William  A.  Mowry  and  the  daughter  of  the  Indian  Pero, 
the  marriage  was  invalid  under  the  Michigan  statute;  and  this 
instruction  is  now  alleged  to  have  been  erroneous.  It  certainly 
withdrew  from  the  consideration  of  the  jury  all  evidence,  if  any 
there  was,  of  informal  marriage  by  contract  per  verba  de  prcesenti. 
That  such  a  contract  constitutes  a  marriage  at  common  law  there 
can  be  no  doubt,  in  view  of  the  adjudications  made  in  this  country, 
from  its  earliest  settlement  to  the  present  day.  Marriage  is  every- 
where regarded  as  a  civil  contract.  Statutes  in  many  of  the  states, 
it  is  true,  regulate  the  mode  of  entering  into  the  contract,  but  they 
do  not  confer  the  right.  Hence  they  are  not  within  the  principle 
that,  where  a  statute  creates  a  right  and  provides  a  remedy  for  its 

[23] 


24  CONTRACT   OF    MARRIAGE. 

enforcement,  the  remedy  is  exclusive.  No  doubt,  a  statute  may 
take  away  a  common-law  right;  but  there  is  always  a  presumption 
that  the  legislature  has  no  such  intention,  unless  it  be  plainly  ex- 
pressed. A  statute  may  declare  that  no  marriages  shall  be  valid 
unless  they  are  solemnized  in  a  prescribed  manner;  but  such  an  en- 
actment is  a  very  different  thing  from  a  law  recjuiring  all  marriages 
to  be  entered  into  in  the  presence  of  a  magistrate  or  a  clergyman,  or 
that  it  be  preceded  by  a  license,  or  publications  of  banns,  or  be 
attested  by  witnesses.  Such  formal  provisions  may  be  construed  as 
merely  directory,  instead  of  being  treated  as  destructive  of  a  com- 
mon-law right  to  form  the  marriage  relation  by  words  of  present 
assent.  And  such,  we  think,  has  been  the  rule  generally  adopted 
in  construing  statutes  regulating  marriage.  Whatever  directions 
they  may  give  respecting  its  formation  or  solemnization,  courts  have 
usually  held  a  marriage  good  at  common  law  to  be  good  notwith- 
standing the  statutes,  unless  they  contain  express  words  of  a  nullity. 
This  is  the  conclusion  reached  by  Mr.  Bishop,  after  an  examination 
of  the  authorities.  Bishop,  Mar.  and  Div.,  sec.  283  and  notes. 
We  do  not  propose  to  examine  in  detail  the  numerous  decis- 
ions that  have  been  made  by  the  state  courts.  In  many  of  the 
states,  enactments  exist  very  similar  to  the  Michigan  statute;  but 
their  object  has  manifestly  been,  not  to  declare  what  shall  be  requi- 
site to  the  validity  of  a  marriage,  but  to  provide  a  legitimate  mode 
of  solemnizing  it.  They  speak  of  the  celebration  of  its  rite  rather 
than  of  its  validity,  and  they  address  themselves  principally  to  the 
functionaries  they  authorize  to  perform  the  ceremony.  In  most 
cases,  the  leading  purpose  is  to  secure  a  registration  of  marriages, 
and  evidence  of  which  marriages  may  be  proved;  for  example,  by 
certificate  of  a  clergyman  or  magistrate,  or  by  an  exemplification  of 
the  registry.  In  a  small  number  of  the  states,  it  must  be  admitted, 
such  statutes  have  been  construed  as  denying  validity  to  marriages 
not  formed  according  to  the  statutory  directions.  Notably  has  this 
been  so  in  North  Carolina  and  in  Tennessee,  where  the  statute  of 
North  Carolina  was  in  force.  But  the  statute  contained  a  provision 
declaring  null  and  void  all  marriages  solemnized  as  directed,  with- 
out a  license  first  had.  So,  in  Massachusetts,  it  was  early  decided 
that  a  statute  very  like  the  Michigan  statute  rendered  illegal  a  mar- 
riage which  would  have  been  good  at  common  law,  but  which  was 
not  entered  into  in  the  manner  directed  by  the  written  law.  Mil- 
ford  v.  Worcester,  7  Mass.  48.  It  may  be  well  doubted,  however, 
whether  such  is  now  the  law  in  that  state.  In  Parton  v.  Henry, 
I  Gray  (Mass.),  119,  where  the  question  was,  whether  a  marriage  of 
a  girl  only  thirteen  years  old,  married  without  parental  consent,  was 


COMMON    LAW    MARRIAGE  —  REQUISITES   OF   FORM.  25 

a  valid  marriage  (the  statutes  prohibiting  clergymen  and  magis- 
trates from  solemnizing  marriages  of  females  under  eighteen,  with- 
out the  consent  of  parents  or  guardians),  the  court  held  it  good  and 
binding,  notwithstanding  the  statute.  In  speaking  of  the  effect  of 
statutes  regulating  marriage,  including  the  Massachusetts  statute 
(which,  as  we  have  said,  contained  all  the  provisions  of  the  Michigan 
one),  the  court  said:  "  The  effect  of  these  and  similar  statutes  is 
not  to  render  such  marriages,  when  duly  solemnized,  void,  although 
the  statute  provisions  have  not  been  complied  with.  They  are  in- 
tended as  directory  only  upon  ministers  and  magistrates,  and  to  pre- 
vent as  far  as  possible,  by  penalties  on  them,  the  solemnization  of 
marriages  when  the  prescribed  conditions  and  formalities  have  not 
been  fulfilled.  But,  in  the  absence  of  any  provision  declaring  mar- 
riages not  celebrated  in  a  prescribed  manner,  or  between  parties  of 
certain  ages,  absolutely  void,  it  is  held  that  all  marriages  regularly 
made  according  to  the  common  law  are  valid  and  binding,  though 
had  in  violation  of  the  specific  regulations  imposed  by  statute." 
There  are  two  or  three  other  states  in  which  decisions  have  been 
made  like  that  in  7th  Massachusetts. 

We  will  not  undertake  to  cite  those  which  hold  a  different  doc- 
trine, one  in  accord  with  the  opinion  we  have  cited  from  i  Gray. 
Reference  is  made  to  them  in  Bishop,  Mar.  &  Div.,  sec.  283,  et  seq.j 
in  Reeve's  Domestic  Relations,  199,  200;  in  2  Kent,  Com.  90,  91; 
and  in  2  Greenleaf  on  Evidence.  The  rule  deduced  by  all  these 
writers  from  the  decided  cases  is  thus  stated  by  Mr.  Greenleaf:  — 

"  Though  in  most,  if  not  all,  the  United  States  there  are  statutes 
regulating  the  celebration  of  marriage  rites,  and  inflicting  penalties 
on  all  who  disobey  the  regulations,  yet  it  is  generally  considered, 
that,  in  the  absence  of  any  positive  statute  declaring  that  all  mar- 
riages not  celebrated  in  the  prescribed  manner  shall  be  void,  or 
that  none  but  certain  magistrates  or  ministers  shall  solemnize  a 
marriage,  any  marriage,  regularly  made  according  to  the  common 
law,  without  observing  the  statute  regulations  would  still  be  a  valid 
marriage." 

As  before  remarked,  the  statutes  are  held  merely  directory;  because 
marriage  is  a  thing  of  common  right,  because  it  is  the  policy  of  the 
state  to  encourage  it,  and  because,  as  has  sometimes  been  said,  any 
other  construction  would  compel  holding  illegitimate  the  offspring 
of  many  parents  conscious  of  no    violation  of  law. 

The  Michigan  statute  differs  in  no  essential  particular  from  those 
of  other  States  which  have  generally  been  so  construed.  It  does 
not  declare  marriages  void  which  have  not  been  entered  into  in  the 
presence  of  a  minister  or  magistrate.      It  does  not  deny  the  validity 


26  CONTRACT    OK    MARRIAGE. 

to  marriages  which  are  good  at  common  law.  The  most  that  can  be 
said  of  it,  that  it  contains  impHcations  of  an  intention  that  all  mar- 
riages, except  some  particularly  mentioned,  should  be  celebrated  in 
the  manner  prescribed.  The  sixth  section  declares  how  they  may 
be  solemnized.  The  seventh  describes  what  shall  be  required  of 
justices  of  the  peace  and  ministers  of  the  gospel  before  they  solemn- 
ize any  marriage.  The  eighth  declares  that  in  every  case,  that  is, 
whenever  any  marriage  shall  be  solemnized  in  the  manner  described 
in  the  act,  there  shall  be  at  least  two  witnesses  present  beside  the 
minister  or  magistrate.  The  ninth,  tenth,  eleventh,  sixteenth,  and 
seventeenth  sections  provide  for  certificates,  registers,  and  exempli- 
fications of  records  of  marriages  solemnized  by  magistrates  and 
ministers.  The  twelfth  and  thirteenth  impose  penalties  upon  jus- 
tices and  ministers  joining  persons  in  marriage  contrary  to  the  pro- 
visions of  the  act,  and  upon  persons  joining  others  in  marriage, 
knowing  that  they  are  not  lawfully  authorized  so  to  do.  The  four- 
teenth and  fifteenth  sections  are  those  upon  which  most  reliance  is 
placed  in  support  of  the  charge  of  the  Circuit  Court.  The  former 
declares  that  no  marriage  solemnized  before  any  person  professing 
to  be  a  justice  of  the  peace  or  minister  of  the  gospel  shall  be 
deemed  or  adjudged  to  be  void  on  account  of  any  want  of  jurisdic- 
tion or  authority  in  such  supposed  minister  or  justice,  provided  the 
marriage  be  consummated  in  the  full  belief  on  the  part  of  the  per- 
sons so  married,  or  either  of  them,  that  they  have  been  lawfully 
joined  in  marriage.  This,  it  is  argued,  raises  an  implication  that 
marriages  not  in  the  presence  of  a  minister  or  justice,  or  one  pro- 
fessing to  be  such,  were  intended  to  be  declared  void.  But  the  im- 
plication is  not  necessarily  so  broad.  It  is  satisfied  if  it  reach 
not  beyond  marriages  in  the  mode  allowed  by  the  act  of  the  legis- 
lature. 

The  fifteenth  section  exempts  people  called  Quakers,  or  Friends, 
from  the  operation  of  the  act,  as  also  Menonists.  As  to  them  the 
act  gives  no  directions.  From  this,  also,  an  inference  is  attempted 
to  be  drawn  that  lawful  marriages  of  all  other  persons  must  be 
in  the  mode  directed  or  allowed.  We  think  the  inference  is  not 
a  necessary  one.  Both  these  sections,  the  fourteenth  and  fif- 
teenth, are  to  be  found  in  the  acts  of  other  states,  in  which  it  has 
been  decided  that  the  statutes  do  not  make  invalid  common-law 
marriages. 

It  is  unnecessary,  however,  to  pursue  this  line  of  thought.  If 
there  has  been  a  construction  given  to  the  statute  by  the  Supreme 
Court  of  Michigan,  that  construction  must,  in  this  case,  be  control- 
ling with  us.     And  we  think  the  meaning  and  effect  of  the  statute 


COMMON    LAW    MARRIAGE  —  REQUISITES   OF   FORM.  2/ 

has  been  declared  by  tliat  court  in  the  case  of  Huichins  v.  Kimmell, 
31  Mich.  126,  a  case  decided  on  the  13th  of  January,  1875.  There, 
it  is  true,  the  direct  question  was,  whether  a  marriage  had  been 
effected  in  a  foreign  country.  But  in  considering  it,  the  court  found 
it  necessary  to  declare  what  the  law  of  the  state  was;  and  it  was 
thus  stated  by  Cooley,  J.:  "Had  the  supposed  marriage  taken 
place  in  this  state,  evidence  that  a  ceremony  was  performed  osten- 
sibly in  celebration  of  it,  with  the  apparent  consent  and  co-operation 
of  the  parties,  would  have  been  evidence  of  a  marriage,  even  though 
it  had  fallen  short  of  showing  that  the  statutory  regulations  had 
been  complied  with,  or  had  affirmatively  shown  that  they  were  not. 
Whatever  the  form  of  ceremony,  or  even  if  all  ceremony  was  dis- 
pensed with,  if  the  parties  agreed  presently  to  take  each  other  for 
husband  and  wife,  and  from  that  time  live  together  professedly  in 
that  relation,  proof  of  these  facts  would  be  sufficient  to  constitute 
proof  of  a  marriage  binding  upon  the  parties,  and  which  would  sub- 
ject them  and  others  to  legal  penalties  for  a  disregard  of  its  obliga- 
tions. This  has  become  the  settled  doctrine  of  the  American 
courts;  the  few  cases  of  dissent,  or  apparent  dissent,  being  borne 
down  by  the  great  weight  of  authority  in  favor  of  the  rule  as  we  have 
stated  it;"  citing  a  large  number  of  authorities  and  concluding, 
"  such  being  the  law  of  this  state."  We  cannot  regard  this  as  mere 
obiter  dicta.  It  is  rather  an  authoritative  declaration  of  what  is  the 
law  of  the  state,  notwithstanding  the  statute  regulating  marriages. 
And  if  the  law  in  1875,  it  must  have  been  the  law  in  1845,  when,  it 
is  claimed,  Mowry  and  the  Indian  girl  were  married;  for  it  is  not 
claimed  that  any  change  of  the  law  was  made  between  the  time  when 
the  statute  was  enacted  and  1875.  The  decision  of  the  Michigan 
Supreme  Court  had  not  been  made  when  this  case  was  tried  in  the 
court  below.  Had  it  been,  it  would  doubtless  have  been  followed 
by  the  learned  and  careful  circuit  judge.  But,  accepting  it  as  the 
law  of  Michigan,  we  are  constrained  to  rule  there  was  error  in  charg- 
ing the  jury,  that,  if  they  found  neither  a  minister  nor  a  magistrate 
was  present  at  the  alleged  marriage,  such  marriage  was  invalid,  and 
the  verdict  should  be  for  the  defendants. 

It  has  been  argued,  however,  that  there  was  no  evidence  of  any 
marriage  good  at  common  law,  which  could  be  submitted  to  the 
jury,  and,  therefore,  that  the  error  of  the  court  could  have  done  the 
plaintiff  no  harm.  If  all  the  evidence  given  or  legally  offered  were 
before  us,  we  might  be  of  that  opinion;  but  the  record  does  not 
contain  it  all,  and  we  are  unable,  therefore,  to  say  the  ruling  of  the 
court  is  immaterial.     The  case  must,  therefore,  go  back  for  a  new 


28  CONTRACT   OF    MARRIAGE. 

trial.     We  do   not  consider   the   other  questions   presented.     They 
may  not  arise  on  the  second  trial. 

Judgment  reversed,  and  new  trial  ordered. 


Mitchell,  J.,  in  HULETT  v.  CAREY. 

66  Minn.  327,  335.  —  1896. 

The  respondent  had  been  for  a  long  time  pritir  to  the  execution 
of  the  marriage  contract^  in  the  employment  of  Hulett  as  housekeeper 
at  his  farm  at  Stoney  Point  some  miles  out  of  the  city  of  Duluth.  Her 
testimony  is  that  immediately  after  the  execution  of  this  contract 
she  moved  into  his  room,  and  that  from  henceforth  until  his  death 
they  occupied  the  same  sleeping  apartment,  and  cohabited  together 
as  husband  and  wife.  But  she  admits  that  it  was  agreed  between 
them  that  their  marriage  was  to  be  kept  secret  until  they  could  move 
into  Duluth  and  go  to  housekeeping  in  a  house  which  Hulett  owned 
in  that  city.  While  a  feeble  effort  was  made  to  prove  that  their 
marital  relation  had  become  known  to  one  or  two  persons,  yet  we 
consider  the  evidence  conclusive  that  their  marriage  contract  was 
kept  secret,  that  they  never  publicly  assumed  marital  relations,  or 
held  themselves  out  to  the  public  as  husband  and  wife,  but,  on  the 
contrary,  so  conducted  themselves  as  to  leave  the  public  under  the 
impression  that  their  former  relations  of  employer  and  housekeeper 
remained  unchanged.  Upon  this  state  of  facts  the  contention  of 
the  appellants  is  that  there  was  no  marriage,  notwithstanding  the 
execution  by  them  of  the  written  contract;  that,  in  order  to  consti- 
tute a  valid  common-law  marriage,  the  contract,  although  in  verba 
de prcesenti,  must  be  followed  by  habit  or  reputation  of  marriage  — 
that  is,  as  we  understand  counsel,  by  the  public  assumption  of  mari- 
tal relations.  We  do  not  so  understand  the  law.  The  law  views 
marriage  as  being  merely  a  civil  contract,  not  differing  from  any 
other  contract,  except  that  it  is  not  revocable  or  dissoluble  at  the  will 
of  the  parties.    The  essence  of  the  contract  of  marriage  is  the  consent 

'  In  McLaughlin  s  Estate  (4  Wash.  St.  570. —  1892),  the  Supreme  Court  of  the 
State  of  Washington,  in  declaring  common-law  marriages  invalid,  reviews  at 
length  the  decisions  of  various  other  jurisdictions  upon  the  subject. 

*  The  written  contract  is  as  follows;  "January  6,  1892.  Contract  of  mar- 
riage between  N.  Hulett  and  Mrs.  L.  A.  Pomeroy.  Believing  a  marriage  by  con- 
tract to  be  perfectly  lawful  we  do  hereby  agree  to  be  husband  and  wife  and  to 
hereafter  live  together  as  such.  In  witness  whereof  we  have  hereunto  set  our 
hands  the  day  and  year  first  above  written.     (Signed)  N.  Hulett,  L.  A.  Pomeroy." 


COMMON    LAW    MARRIAGE  —  REQUISITES    OF   FORM.  29 

of  the  parties,  as  in  the  case  of  any  other  contract;  and,  whenever 
there  is  a  present,  perfect  consent  to  be  husband  and  wife,  the  con- 
tract of  marriage  is  completed.  The  authorities  are  practically 
unanimous  to  this  effect.  Marriage  is  a  civil  contrsiCt  Jure  gentium, 
to  the  validity  of  which  the  consent  of  parties  able  to  contract  is  all 
that  is  required  by  natural  or  public  law.  If  the  contract  is  made 
per  verba  de  prcesetiti,  and  remains  without  cohabitation,  or  if  made 
per  verba  de  futuro,  and  be  followed  by  consummation,  it  amounts  to 
a  valid  marriage,  in  the  absence  of  any  civil  regulations  to  the  con- 
trary. 2  Kent,  Com.  p.  87;  2  Greenl.  Ev.  sec.  460;  i  Bish.  Mar.  & 
Div.  sees.  218,  227-229.  The  maxim  of  the  civil  law  was  "  consensus 
nofi  concubitus  facit  matrimonium.''  The  whole  law  of  the  subject  is 
that,  to  render  competent  parties  husband  and  wife,  they  must  and 
need  only  agree  in  the  present  tense  to  be  such,  no  time  being  contem- 
plated to  elapse  before  the  assumption  of  the  status.  If  cohabita- 
tion follows,  it  adds  nothing  to  the  law,  although  it  may  be  evidence 
of  marriage.  It  is  mutual  present  consent,  lawfully  expressed,  which 
makes  the  marriage,  i  Bish.  Mar.  Div.  &  Sep.  sees.  239,  313,  315,  317.' 
See,  also,  the  leading  case  of  Dalrympk  v.  Dalrytnple,  2  Hagg. 
Consist.  54,  which  is  the  foundation  of  much  of  the  law  on  the  sub- 
ject. An  agreement  to  keep  the  marriage  secret  does  not  invalidate 
it,  although  the  fact  of  secrecy  might  be  evidence  that  no  marriage 
ever  took  place.  Dalrymple  v.  Dalry?nple,  supra.  The  only  two 
cases  which  we  have  found  in  which  anything  to  the  contr^,ry  is 
actually  decided,  are  Jieg.  v.  Millis,  10  Clark  &  F.  534,  and  Jewell  v. 
Jewell,  I  How.  219;  the  court  in  each  case  being  equally  divided. 
But  these  cases  have  never  been  recognized  as  the  law,  either  in 
England  or  in  this  country.  Counsel  for  appellants  contend,  how- 
ever, that  the  law  is  otherwise  in  this  state;  State  v.  Worthingham, 
23  Minn.  528,  in  which  this  court  used  the  following  language: 
"  Consent,  freely  given,  is  the  essence  of  the  contract.  A  mutual 
agreement,  therefore,  between  competent  parties,  per  verba  de  pm- 
senti,  to  take  each  other  for  husband  and  wife,  deliberately  made, 
and  acted  upon  by  living  together  professedly  in  that  relation,  is 
held  by  the  great  weight  of  American  authority  sufficient  to  consti- 
tute a  valid  marriage  with  all  its  legal  incidents;  "  citing  Hutc kins \. 
Kimmell,  31  Mich.  126.  Similar  expressions  have  been  sometimes 
used  by  other  courts,  but  upon  examination  it  will  be  found  that  in 
none  of  them  was  it  ever  decided  that,  although  the  parties  mutually 
agreed  per  verba  de  prcBsenti  to  take  each  other  for  husband  and  wife, 
it  was  necessary,  in  order  to  constitute  a  valid  marriage,  that  this 
agreement  should  have  been  co.>sequently  acted  upon  by  their  living 
together  professedly  as  husband    and  wife.     In  some  cases  where 

'  Contra,  that  present  consent  is  not  suffi\.'«3nt.  but  there  must  also  becohaoua- 
tion.  Lorinter  v.  Larimer,  124  Mich.  6.11. 


30  CONTRACT   OF   MARRIAGE. 

such  expressions  were  used  the  court  was  merely  stating  a  proven  or 
admitted  fact  in  that  particular  case,  while  in  others  the  contract  of 
marriage  was  sought  to  be  proved  by  habit  and  repute,  and  the 
courts  merely  meant  that  the  act  of  parties  in  holding  themselves 
out  as  husband  and  wife  is  evidence  of  a  marriage.  In  State  v. 
Worthinghain^  supra,  which  was  a  prosecution  for  bastardy,  the  de- 
fendant offered  as  proof  of  his  marriage  to  the  mother  of  the  child 
that  during  all  the  time  they  lived  and  cohabited  together  the  woman 
held  herself  out  to  her  friends  generally  as  his  wife,  and  that  both  of 
them  represented  to  the  world  that  they  had  been  married.  The  point 
really  decided  by  the  court,  and  evidently  the  only  one  it  had  in 
mind  was  that  this  was  competent  evidence  of  a  marriage,  and  that 
no  formal  solemnization  of  ceremony  was  necessary  to  give  it  valid- 
ity. 'The  statement  in  the  opinion  already  cjuoted  is  probably  sub- 
ject to  the  criticism  that  it  does  not  accurately  discriminate  between 
the  fact  of  marriage  and  the  proof  of  it.  The  case  of  Hiitchins  v. 
Kimmell,  supra,  cited  by  this  court,  does  contain  such  expressions  as 
"followed  by  cohabitation,"  and  "from  that  time  lived  together 
professedly  in  that  relation;  "  but  this  language  was  evidently  used 
simply  as  a  recital  of  the  actual  facts  in  that  particular  case.  There 
is  nothing  in  the  opinion  indicating  that  the  court  intended  to  hold 
that  a  mutual,  present  consent  to  be  husband  and  wife  will  not  con- 
stitute a  valid  marriage  unless  followed  by  cohabitation  of  the  par- 
ties, and  a  holding  of  themselves  out  as  man  and  wife.  Sharon  v. 
Sharon,  75  Cal.  i,  16  Pac.  345,  and  Id.,  79  Cal.  633,  22  Pac.  26,  131, 
is  not  in  point,  for  the  reason  that  section  55  of  the  Civil  Code  of 
that  state  provides  that  "  consent  alone  will  not  constitute  mar- 
riage; it  must  be  followed  by  a  solemnization  or  by  a  mutual  assump- 
tion of  marital  rights,  duties,  or  obligations."  In  view  of  the 
increasing  number  of  common-law  widows  laying  claim  (in  many 
instances,  doubtless,  fraudulently)  to  the  estates  of  deceased  men 
of  wealth,  it  is  a  question  for  the  legislature  whether  the  common  law 
should  not  be  changed;  but  with  that  the  courts  have  nothing  to  do. 


DUNCAN  V.  DUNCAN. 

10  Ohio  St.  181. —  1859. 

Petition  in  error  in  the  nature  of  a  bill  of  review.  Reserved  in 
Cuyahoga  county. 

Brinckerhoff,  C.  J.  This  is  a  petition  in  error,  in  the  nature  of 
a  bill  in  review,  filed  in  the  District  Court  of  Cuyahoga  county  to 
reverse  a  decree  of  that  court,  and  reserved  for  decision  by  this  court. 


COMMON    LAW    MARRIAGE  —  REQUISITES   OF   FORM.  3I 

The  original  case  was  a  bill  in  chancery,  filed  in  the  Comnion 
Pleas  of  Cuyahoga  county,  by  Eliza  Duncan,  now  defendant  in  error, 
against  Robert  Duncan,  now  plaintiff  in  error,  and  others,  alleging 
'that  she  is  the  widow  of  Alexander  Duncan,  deceased;  that  said 
Alexander  died  seized  of  certain  real  estate  described;  and  praying 
the  assignment  to  her  of  dower  therein.  The  case,  having  been 
determined  in  the  Common  Pleas,  was  taken,  by  appeal,  to  the 
District  Court,  which  court  decreed  dower  to  Eliza,  as  prayed  for 
in  her  bill.     To  reverse  this  decree,  this  petition  is  prosecuted. 

The  facts  of  the  case,  on  which  this  decree  was  based,  as  clearly 
appear  from  the  bill,  answers,  exhibits,  and  testimony,  are  substan- 
tially these: 

Alexander  Duncan,  a  native  of  Ireland,  was  married  in  that  coun- 
try. He  abandoned  his  wife,  came  to  this  country,  bringing  with 
him  two  sons  (of  whom  the  plaintiff  in  error  is  one),  the  only  off" 
spring  of  such  marriage,  and  settled  at  Cleveland,  in  this  state. 
Soon  afterward,  the  complainant  below,  Eliza,  who  had  been  brought 
up  and  lived  in  the  same  neighborhood  with  Alexander  Duncan,  in 
Ireland,  and  well  knew  both  him  and  his  wife,  as  well  as  the  fact  of 
his  marriage,  came  over  the  water  to  Cleveland  at  his  request,  and 
began  to  cohabit  with  him  as  his  wife,  under  an  agreement  or  under- 
standing that,  as  soon  as  he  could  procure  a  divorce  from  his  wife 
left  behind  in  the  old  country,  he  would  marry  her,  Eliza.  He 
introduced  and  spoke  of  her  as  his  wife,  and  she  passed  among  the 
neighbors  as  such.  Two  children  were  the  result  of  this  adulterous 
connection;  for  the  wife  in  Ireland  still  lived,  and  no  divorce  was 
ever  obtained.  Finally,  news  arrived  (and  which  seems  to  have 
been  true),  of  the  death  of  the  old  wife  in  a  poor-house  in  Ireland. 
The  promise  that  "  he  would  marry  her  "  was  then  renewed  to 
Eliza;  but  no  other  marriage  was  ever  celebrated,  in  any  form, 
between  them,  and  they  continued  to  cohabit  as  before;  and  he,  soon 
after,  sickened  and  died. 

The  District  Court  having,  on  this  state  of  facts,  decreed  dower 
to  Eliza,  the  sole  question  made  by  this  proceeding  in  review  is, 
whether  a  contract  to  marry  in  the  future,  followed  by  cohabitation 
as  husband  and  wife,  is,  per  se,  a  marriage  ? 

The  proof  of  some  of  the  most  important  of  the  facts  above  men- 
tioned, rests  mainly  upon  declarations  made  by  Eliza,  after  the 
death  of  Alexander  Duncan;  and  it  is  objected  that  evidence  of  this 
kind  is  unreliable  and  unsatisfactory.  This  is  often,  and  perhaps 
ordinarily  so;  but  it  is  not  always,  or  necessarily  so,  nor  is  it  so  in 
this  case.  She  had  ample  means  of  knowing  as  to  the  facts  of  which 
she  spoke;  she  made  the  declarations  deliberately  and  repeatedly, 


32  CONTRACT   OF    MARRIAGE. 

under  circumstances  rebutting  all  suspicion  of  fraud  or  circumven- 
tion; and  if  they  were  otherwise,  she  had  every  apparent  interest  so 
to  declare.  The  declarations  of  a  party,  made  under  such  circum- 
stances, often  constitute  the  strongest  and  most  satisfactory  evi- 
dence. 

We  desire  that  it  shall  be  distinctly  noticed  that  this  case  presents 
no  question  as  to  the  validity  of  a  marriage  contract  (otherwise  than 
in  accordance  with  the  provisions  of  our  statute  on  that  subject), />^r 
-I'erba  de  pnrsfnti,  as  if,  the  parties  being  competent  to  contract  the 
relation  of  marriage,  the  man  shall  say,  in  the  presence  of  witnesses, 
"I  hereby  take  you  for  my  wife;"  and  the  woman  shall  say, 
"  I  hereby  take  you  for  my  husband."  The  facts  of  the  case  make 
no  such  question;  and  we  leave  it  where  we  find  it. 

Nor  is  this  a  question  as  to  the  presumption  of  a  marriage  from 
reputation;  or  from  circumstances,  such  as  cohabitation,  holding 
each  other  out  as  husband  and  wife,  and  the  like.  Such  presump- 
tion, in  the  absence  of  evidence  to  rebut  it,  is  often  and  properly 
made.  But  the  question,  as  before  stated,  is  simply  this,  whether  a 
contract  to  marry  per  verba  de  futuro^  followed  by  cohabitation  as 
husband  and  wife,  is  in  itself  a  marriage  ?  P'or,  in  this  case,  the  evi- 
dence of  the  fact  is  clear  and  explicit,  and  there  is  no  room  for  pre- 
sumption. 

The  idea  that  a  contract  for  a  future  marriage,  followed  by  cohabi- 
tation as  husband  and  wife,  is  itself  a  valid  marriage  at  common  law, 
seems  to  have  obtained  currency  on  the  credit  of  remarks  made  by 
several  elementary  writers  of  distinguished  learning  and  ability,  and 
by  certain  judges  of  high  character,  speaking  by  way  of  obiter  dicta, 
in  cases  in  which  this  question  was  really  in  no  way  involved.  But 
the  better  opinion  now  seems  to  be,  that  these  remarks  are  unsup- 
ported by  any  case  actually  adjudicated  and  entitled  to  be  con- 
sidered as  authoritative;  and  that  such  a  contract  never  was  a  good 
marriage  at  common  law,  either  in  this  country  or  in  England;  and 
the  mistaken  doctrine  seems  to  have  originated,  either  in  the  inad- 
vertent confounding  of  what  might,  in  the  absence  of  rebutting  evi- 
dence, be  good  presumptive  evidence  of  a  marriage,  with  marriage 
itself;  or  from  the  fact  that  such  a  contract  per  verba  de  futuro, 
followed  by  cohabitation,  was  one  of  which  the  canon  law,  as 
administered  by  ecclesiastical  courts  in  England,  until  restrained  by 
statute,  would  enforce  the  specific  performance. 

Chancellor  Kent,  2  Com.  87,  says:  "  If  the  contract  be  made/(?r 
verba  de  pmsenti,  and  remains  without  cohabitation,  or  if  made  per 
verba  de  fufuro,  and  be  followed  by  consummation,  it  amounts  to 
valid  marriage  in  the  absence  of  all  civil  regulations  to  the  contrary, 


COMMON    LAW    MARRIAGE  —  REQUISITES   OF   FORM.  33 

ind  which  the  parties  (being  competent  as  to  age  and  consent)  can- 
not dissolve,  and  it  is  equally  binding  as  if  made  in  facie  ecclesice." 
In  support  of  this  proposition  he  cites  no  authority. 

Mr.  Greenleaf,  in  his  work  on  Evidence,  vol.  2,  sec.  460,  states 
the  same  doctrine  in  the  same  language,  and  cites  Kent,  Com.  87; 
Fenton  v.  Reed^  4  Johns.  52,  and  yackson  v.  Winne  7  Wend.  47. 
Now,  neither  of  these  cases  sustain  the  doctrine  of  his  text.  The 
former  was  a  case  simply  where  marriage  was  presumed,  in  the 
absence  of  evidence  to  the  contrary,  from  circumstantial  evidence, 
such  as  cohabitation,  reputation,  acknowledgment  of  the  parties, 
etc. ;  and  the   latter  case  was  one  of  marriage  per  verba  de  prcesentt. 

The  same  doctrine  of  marriage  per  verba  de  fiituro  is  recognized 
in  the  remarks  of  Chief  Justice  Boyle  in  Demarsely  v.  Fishley,  3  A.  K. 
Marsh,  369,  and  in  those  of  Cowen,  J.,  in  Starr  v.  Peck,  i  Hill,  270. 
But  neither  of  those  cases  involved  this  question,  and  the  remarks 
of  those  learned  judges  were,  therefore,  incidental,  and  outside  of 
the  cases  under  consideration  before  them. 

Bouvier,  in  his  institutes,  vol.  i,  p.  no,  lays  down  the  same  doc- 
trine as  Kent  and  Greenleaf,  in  the  same  language,  and  cites  Kent 
and  Greenleaf,  ubi  supra,  Fenton  v.  Reed,  and  Jackson  v.  Winne,  be- 
fore referred  to,  and  also  Crain  v.  Biirnham,  5  Greenl.  213;  Hantz  v. 
Sealy,  6  Binn.  405;  and  Bac.  Abr.,  Marriage,  B. 

Cram  v.  Burnham  was  a  suit  by  Cram,  upon  a  promissory  note 
given  to  his  pretended  wife,  with  whom  he  was  cohabiting  as  a  wife, 
but,  as  the  proof  showed,  really  in  a  state  of  adultery.  The  court, 
in  deciding  the  case,  say,  that  if  the  proof  had  stopped  with  the 
proof  of  cohabitation,  a  marriage  might  have  been  presumed;  but  as 
the  proof  rebutted  the  presumption  of  marriage  arising  from  the  fact 
of  cohabitation,  the  plaintiff  could  not  recover  in  his  own  name,  and 
have  judgment  against  him.  And  in  so  far  as  the  case  has  any  bearing 
upon  the  question  before  us,  its  authority  is  against,  rather  than  in 
favor  of^  the  proposition  which  it  was  cited  to  sustain.  Hantz  v. 
Sealy  is  equally  far  from  sustaining  the  doctrine  in  support  of  which 
it  is  cited,  except  as  to  the  validity  of  a  marriage  by  words  of  contract 
in  the  present  tense.  Marriage  or  not,  was  the  issue  of  the  case. 
The  words  proved,  on  the  part  of  the  man,  were  "  I  take  you  for  my 
wife;  "  and  the  woman,  being  told  that  if  she  would  say  the  same 
thing,  the  marriage  would  be  complete,  answered,  "  To  be  sure  he 
is  my  husband,  good  enough."  The  court  held  that  these  were  not 
words,  on  the  part  of  the  woman  at  least,  of  present  contract,  but 
had  reference  to  the  past,  and  did  not  constitute  a  marriage.  The 
citation  from  Bacon's  Abridgement  is  this:  "  A  contract  in  J//''ro, 
as,  I  will  marry  you,  etc.,  may  be  enforced  in  the  spiritual  cour  but 
[Domestic  Relations  —  3.] 


34  CONTRACT   OF    MARRIAGE. 

such  contract  either  party  may  release;  also,  if  either  party  marry 
another  person,  such  second  marriage  dissolves  the  contract."  This 
citation,  so  far  from  supporting  the  proposition  of  Bouvier,  goes 
only  to  show  the  correctness  of  the  distinction  above  mentioned,  to 
wit,  that  such  a  contract  is  no  marriage,  but  it  is  only  a  contract 
which  might,  at  one  time  in  England,  have  been  enforced  in  the 
spiritual  courts  and  for  a  breach  of  which  the  law  now  gives  a  remedy 
in  damages. 

Blackstone,  i  Comm.  439,  says:  "Any  contract  made /^r  verba 
de  prcesenti^  or  in  words  of  the  present  tense,  and  in  the  case  of 
cohabitation,  per  verba  de  futuro,  also,  between  persons  able  to  con- 
tract, was,  before  the  late  act,  deemed  a  valid  marriage  to  many  pur- 
poses; and  the  parties  might  be  compelled  in  the  spiritual  courts  to 
celebrate  it  in  faeie  ecclesice."  What  these  "  many  purposes  "  for 
which  a  marriage  per  verba  de  futuro  was  valid,  were,  does  not  very 
clearly  appear;  and,  whatever  they  may  have  been,  it  seems  now 
to  be  pretty  well  settled  that  they  did  not  embrace  a  right  to« 
dower  on  the  part  of  the  wife,  nor  the  right  to  administer  on 
her  estate  or  to  her  property,  on  the  part  of  the  husband,  nor  the 
legitimacy  of  offspring,  nor  the  avoiding  of  a  subsequent  marriage 
pending  the  first.  2  Bright  on  Husband  and  Wife,  397.  In  yewell 
V.  yetvell,  17  Peters,  213,  the  Supreme  Court  of  the  United  States 
was  equally  divided  on  this  question;  and  the  remarks  of  the  court 
in  Patton  v.  Philadelphia  and  New  Orleans,  i  La.  Ann.  Rep.  98,  are 
obiter. 

We  have  been  cited  to  no  case,  and  we  can  find  none,  decided 
either  in  England  or  the  United  States,  to  which  such  a  marriage  as 
this  is  claimed  to  be  has  been  held  valid.  On  the  other  hand,  the 
well  considered  case  of  Che?iey  v.  Arnold,  recently  decided  unani- 
mously by  the  Court  of  Appeals  of  New  York,  15  N.  Y.  (i  Smith), 
345,  is  directly  in  point  against  it.  That  was  an  action  for  the 
recovery  of  real  estate  by  a  husband  in  right  of  his  wife,  who  claimed 
as  heir  to  her  deceased  father.  She  was  the  fruit  of  a  cohabitation 
following  a  contract  to  marry  per  "verba  de  futuro.  It  was  a  question 
of  legitimacy  only.  The  court,  after  a  somewhat  elaborate  review 
of  the  whole  subject,  disapproved  of  the  dictum  of  Cowen,  J.,  in 
Starr  v.  Peck,  before  cited,  and  held  such  contract  to  be  no  marriage 
in  fact  or  at  common  law. 

The  Queen  v.  Millis.  10  Clark  &  Finnelly,  534,  was  a  case  in  the 
House  of  Lords,  in  error  to  the  Court  of  Queen's  Bench  in  Ireland. 
The  case  arose  upon  a  prosecution  against  Millis  for  bigamy,  he 
having  been  married  in  Ireland  per  verba  de  prcesenti,  by  a  Presb3'te- 
rian  minister  according  to  the  form  of  that  church,  and,  leaving  the 


COMMON   LAW    MARRIAGE  —  REQUISITES   OF   FORM.  35 

first,  married  another  woman  in  England,  in  the  face  of  the  church. 
The  case  turned  upon  the  question,  which  was  formally  put  by  the 
House  of  Lords  to  the  judges  of  Westminster  Hall,  for  their  opin- 
ion, whether  the  first  marriage  was  valid  as  a  marriage  at  common 
law.  The  judges,  not  having  seats  in  the  House  of  Lords,  through 
C.  J.  Tindal,  of  the  Common  Pleas,  gave  a  unanimous  opinion 
against  the  validity  of  the  first  marriage.  In  this  the  law  lords,  Lynd- 
hurst,  Cottenham,  and  Abinger,  concurred.  Brougham,  Campbell, 
and  Denman,  were  the  other  way.  C.  J.  Tindal,  and  the  six  law 
lords  above  named,  all  delivered  elaborate  opinions,  indicating  much 
care  and  antiquarian  research;  and  judgment  was  given  against  the 
validity  of  the  first  marriage.  But,  while  the  opinion  of  the  eminent 
jurists  of  the  kingdom  was  thus  nearly  balanced  as  to  the  validity, 
at  common  law,  of  a  marriage  by  words  of  present  contract,  and  not 
in  the  face  of  the  church,  there  seems  to  have  been  no  difference  of 
opinion  among  them  as  to  the  invalidity  of  a  marriage  per  verba  de 
futuro,  though  followed  by  cohabitation.  All  of  them  are  careful  to 
distinguish  the  case  before  them  from  such  a  case,  and  either  tacitly 
or  expressly  to  admit  the  invalidity  of  the  latter.  And  all  of  them, 
except  Lord  Brougham,  admit  that  a  marriage  not  celebrated  in 
the  face  of  the  church,  whatever  else  it  may  have  been  good  for,  did 
not  carry  with  it  the  incident  of  dower.  And  the  state  of  the  law, 
as  now  understood  in  England,  may  be  summed  up  as  we  find  it  in 
Kerr's  Blackstone,  458:  "  Any  contract  made  per  verba  de  prcesenti, 
or  in  words  of  the  present  tense,  and  in  the  case  of  cohabitation,  per 
verba  de  futuro,  also,  between  parties  able  to  contract,  was,  before 
the  statute  of  George  II,  so  far  a  valid  marriage,  that  the  parties 
might  be  compelled  in  the  spiritual  courts  to  celebrate  it  in  facie 
ecclesice.  But  these  verbal  contracts  are  now  of  no  force  to  compel 
a  future  marriage;  their  only  operation  being  to  give  the  party  who 
is  willing  to  perform  his  promise  a  right  of  civil  action  against  the 
one  who  refuses  to  do  so." 

Finding  ourselves,  then,  compelled  by  no  preponderating  force  of 
authority  to  the  adoption  of  a  doctrine  so  loose  as  that  which  would 
be  necessary  to  sustain  the  marriage  claimed  to  exist  in  this  case, 
we  are  unwilling  to  do  so.  It  seems  to  us  that  grave  considerations 
of  public  policy  forbid  it;  but  it  would  be  alien  to  the  customs  and 
ideas  of  our  people,  and  would  shock  their  sense  of  proprietv  and 
decency.  That  it  would  tend  to  weaken  the  public  estimate  of  the 
sanctity  of  the  marriage  relation;  to  obscure  the  certainty  of  the 
rights  of  inheritance;  would  be  opening  a  door  to  false  pretenses  of 
marriage,  and  to  the  imposition  upon  estates  of  supposititious  heirs; 


36  CONTRACT   OF    MARRIAGE. 

and  would  place  honest,  God-ordained  matrimony  and  mere  meretri- 
cious cohabitations  too  nearly  on  a  level  with  each  other. 

We  are  of  opinion  that  the  decree  of  the  District  Court  ought  to 
be  reversed,  and  the  original  bill  dismissed. 

Judgment  accordingly. 


DURFEE,  C.  J.,  IN  PECK  V.  PECK. 

12  R.  I.  488,  489.— 1880. 

We  are  of  opinion  that  a  mere  executory  agreement  to  marry  does 
not  become  consummated  by  copulation  unless  the  parties  so  intend. 
It  is  indispensable  to  marriage,  whether  under  the  statute  or  at  com- 
mon law,  that  the  parties  consent  to  be  husband  and  wife  presently, 
and  though  cohabitation  following  an  engagement  is  evidence  of 
such  consent,  it  is  not  conclusive,  but  only  prima  facie  evidence  of 
it,  and  as  such  open  to  rebuttal  by  counter  proof,  i  Bishop  on 
Marriage  and  Divorce,  sees  253,  254;  Forbes  v.  Countess  of  Straih- 
more,  Ferg.  113;  The  Queen  v.  Millis,  10  CI.  &  Fin.  534,  782;  Robert- 
son v.  The  State,  42  Ala.  509;  Fort  v.  Fort,  70  111.  484.  See,  also, 
CJieneyy.  Arnold,  15  N.  Y.  345;  Duncan  y.  Duncan,  10  Ohio  St.  181, 
and  Mr.  Bishop's  criticisms  on  them  in  i  Bishop  on  Marriage  and 
Divorce,  sees.  255-258.  In  the  case  at  bar,  we  think  the  evidence 
shows  that  the  parties  after  their  engagement  were  all  along  looking 
forward  to  a  formal  ceremony  to  make  them  husband  and  wife,  and 
never  agreed  or  consented  to  become  such  without  it.' 

'  "  Confessions  and  cohabitation  would  be  competent  evidence  alone  of  a  mar- 
riage in  most  civil  actions.  It  is  competent  as  evidence  in  all,  but  not  sufficient 
in  prosecutions  for  bigamy,  actions  for  criminal  conversation  and  other  cases,  in 
which  a  marriage  in  fact  must  be  proved." — Allen,  J.,  in  Hayes  v.  People,  25  N. 
Y.  390,  396.  "  The  reason  is  that  while  ordinarily  such  evidence  is  sufficient 
because  the  law  places  that  interpretation  upon  ambiguous  acts  which  favors 
innocence,  and  will  not  assume  that  cohabitation  is  illicit  if,  by  presuming  mar- 
riage, it  would  be  lawful,  yet  in  a  prosecution  for  adultery  this  presumption 
conflicts  with  the  presumed  innocence  of  the  prisoner  of  the  crime  of  which  he 
is  charged,  and,  therefore,  such  evidence  in  such  cases  cannot  alone  establish  a 
marriage.  The  essentials  of  a  valid  marriage  are  in  all  cases  the  same,  the  dis- 
tinction being  in  the  mode  of  proof  alone." — Irvine,  C,  in  Bailey  v.  State,  36 
Neb.  808,  812. 


NON-AGE   OF   A    PARTY.  37 

No7i-age  of  a  Party. 

KOONCE  V.  WALLACE. 

7  Jones  Law   (N.   C),    194. —  1859- 

This  was  a  motion  to  grant  letters  of  administration  on  the  estate 
of  James  G.  Wallace,  deceased,  made  before  the  Supreme  Court  of 
Onslow,  at  its  last  spring  session,  Shepherd,  J.,  presiding. 

The  facts  of  the  case  are  as  follows:  In  February,  1858,  James  G, 
Wallace,  being  then  under  twenty-one  years  of  age,  but  over  sixteen, 
was  married  to  Caroline  Tilghman,  then  under  fourteen  years.  She 
became  fourteen  in  June,  1858,  and  lived  with  Wallace  as  his  wife, 
until  September  23d,  1858,  when  he  died,  being  still  under  twenty- 
one.  The  parties  lived  together  as  man  and  wife,  and  strictly  recog- 
nized each  other  as  such,  from  the  marriage  in  February,  1858,  until 
the  death  of  the  husband  in  Septeinber  of  the  same  year.  At  De- 
cember Term  of  Onslow  County  Court,  Caroline  Wallace,  widow  of 
James  Wallace,  applied  for  letters  of  administration  on  his  estate, 
when  the  defendant  in  this  case,  the  mother  of  the  intestate,  and 
also  his  highest  creditor,  opposed  the  motion,  alleging  that  no  mar- 
riage had  taken  place  between  her  son  and  the  applicant,  inasmuch 
as  the  applicant  was  under  fourteen  years  of  age  when  married.  The 
County  Court  granted  the  letters  of  administration  to  the  applicant, 
and  from  this  judgment  there  was  an  appeal  to  the  Superior  Court, 
when  the  applicant,  Caroline,  relinquished  to  Francis  D.  Koonce,  her 
right  to  administer,  and  that  court  accordingly  granted  him  letters 
of  administration  ;  and  from  this  judgment  defendant  appeals  to  this 
court. 

Pearson,  C.  J.  It  is  enacted.  Rev.  Code,  c.  6p,  sec.  14,"  Females 
under  the  age  of  fourteen,  and  males  under  the  age  of  sixteen  years, 
shall  be  incapable  of  contracting  marriage." 

A  marriage  is  duly  solemnized  in  all  respects  save  that  the  female 
is  a  few  months  under  the  age  of  fourteen;  the  parties  lived  together 
as  man  and  wife,  until  she  arrives  at  that  age,  and  afterwards  con- 
tinue so  to  live  together  until  the  death  of  the  other  party. 

The  question  is  upon  the  construction  of  this  statute,  was  the  mar- 
riage void,  /.  ^.,  a  mere  nullity,  or  was  it  voidable,  /.  c.^  imperfect, 
but  capable  of  being  confirmed  and  made  perfect  by  subsequent  con- 
sent and  cohabitation  as  man  and  wife  ? 

At  common  law,  fourteen  in  males  and  twelve  in  females  was  the 
age  of  consent,  and  if  one  or  both  of  the  parties,  at  the  date  of  the 
celebration  of  the  marriage,  were  under  the  requisite  age,  such  mar- 


38  CONTRACT   OF    MARRIAGE. 

riage  was  imperfect,  by  reason  of  the  fact  that  the  parties  were 
incapable  of  contracting  marriage,  but  it  became  perfect  and  was 
confirmed  if  the  parties,  after  attaining  the  requisite  age,  assented  to 
it  by  continuing  to  cohabit  together  as  man  and  wife.  In  other 
words,  the  marriage  was  not  void,  but  was  only  imperfect  or  void- 
able for  the  want  of  capacity,  but  could  be  made  perfect  or  be  con- 
firmed by  the  consent  of  the  parties,  implied  from  subsequent  cohabi- 
tation as  man  and  wife;  on  the  same  principle  by  which  it  was  held 
that  the  contract  of  one  under  the  age  of  twenty-one,  in  respect  to 
property,  except  for  necessaries,  and  although  imperfect  and  void- 
able because  of  a  supposed  want  of  capacity,  may  be  confirmed  and 
made  perfect  by  assent,  after  attaining  the  age  of  twenty-one. 
Indeed,  the  application  of  this  principle,  is  especially  called  for  in 
regard  to  the  contract  of  marriage  from  its  peculiar  nature  and  con- 
sequences. Coke  Lit.  33a;  ibid,  79a;  Note  43;  i  Bl.  Com.  436. 
Such  was  the  settled  rule  of  law  in  regard  to  incapacity  to  contract, 
for  the  want  of  age,  previous  to  the  statutory  enactment  above 
recited;  and  in  the  opinion  of  this  court,  the  only  effect  of  the  stat- 
ute, was  to  make  sixteen  instead  of  fourteen  years  in  respect  to 
males,  and  fourteen  instead  of  twelve  years  in  respect  to  females,  the 
ages  at  which  the  parties,  respectively,  were  capable  of  making  a  per- 
fect marriage,  leaving  the  rule  of  the  common  law  unaltered  in  all 
other  respects;  for,  as  is  said  by  Bishop  in  his  treatise  on  "  Marriage 
and  Divorce,"  sec.  192:  "The  common-law  rule  of  fourteen  in 
males  and  twelve  in  females,  as  the  age  of  consent,  was  derived  from 
the  civil  and  canon  law.  It  originated  in  the  warm  climate  of 
Italy,  and  it  has  been  thought  not  entirely  suited  to  more  northern 
latitudes.  In  some  of  the  United  States  it  has  been  altered  by  stat- 
ute, and  the  age  of  consent  fixed  at  later  periods  of  life." 

This  construction  of  the  statute  is  supported  by  "  the  reason  of 
the  thing,"  for  no  ground  of  public  policy  can  be  conceived  of  mak- 
ing it  expedient  to  deprive  the  parties  of  the  common-law  right  to 
confirm  by  subsequent  consent  and  cohabitation  as  man  and  wife,  a 
marriage  solemnized  in  due  form  of  law,  although  imperfect,  because 
both  or  one  of  the  parties  were  incapable,  for  want  of  age,  of  mak- 
ing a  perfect  marriage,  whereby,  notwithstanding  such  confirmation 
by  assent  and  cohabitation,  they  should  be  subjected  to  indictment 
for  living  together  in  fornication,  and  their  issue  should  be  deemed 
bastards.  And,  as  we  conceive,  the  correctness  of  this  construction 
is  put  beyond  the  reach  of  doubt  or  question,  by  a  comparison  with 
other  sections  of  the  same  statute,  to  wit, —  section  9,  "all  mar- 
riages contracted  after,"  etc.,  "  between  persons  nearer  of  kin  than 
first  cousins,  shall  be  void;  "  section  7  —  "  all  marriages  since,"  etc., 


NON-AGE   OF   A   PARTY.  39 

"  between  a  white  person  and  a  free  negro,  or  free  person  of  color 
to  the  third  generation,  shall  be  void,"  sec.  8. — "  No  minister  of  the 
gospel  or  justice  of  the  peace  shall  marry  a  white  person  with  an 
Indian,  negro  or  free  person  of  color  to  the  third  generation,  know- 
ing them  to  be  so,  upon  pain  of  forfeiting,"  etc.  Thus  in  the  stat- 
ute, some  marriages  are  made  void,  and,  in  respect  to  others,  it  is 
enacted,  that  the  parties  shall  be  incapable  of  contracting  marriages. 
Why  this  change  of  expression,  if  the  same  idea  was  intended  to  be 
expressed  ?  Taking  into  consideration  the  law  as  it  was  before  set- 
tled, there  is  no  rule  of  construction  which  would  justify  the  court 
in  giving  the  same  meaning  and  effect  to  modes  of  expression  so 
different,  and  such  a  construction  would  shock  common  sense. 

On  the  argument,  Gathings  v.  Williams,  5  Ired.  Rep.  487,  was 
cited,  and  the  counsel  relied  on  this  passage  in  the  opinion 
"  Where  the  marriage  is  between  persons,  one  of  whom  has  no  capa- 
city to  contract  marriage  at  all,  as  where  there  is  a  want  of  age  or 
understanding,  or  a  prior  marriage  still  subsisting,  the  marriage  is 
void  absolutely,  and  from  the  beginning."  In  that  case  there 
was  a  prior  marriage  still  subsisting,  and  the  point  presented 
was  the  effect  of  a  second  marriage,  so  what  dropped  from  the 
court  in  regard  to  a  want  of  age  or  understanding  was  an  obiter 
dictutn.  There  is  a  marked  distinction.  It  may  well  be,  that  a 
second  marriage, .while  the  first  is  still  subsisting,  is  void  and  inca- 
pable of  confirmation,  because  it  is  so  utterly  denounced  by  the  law, 
as  to  subject  the  party  marrying  a  second  time,  to  capital  punish- 
ment as  a  felon,  but  a  mere  want  of  age  or  understanding  rests  on  a 
different  footing  entirely.  Crump  v.  Morgan,  3  Ired.  Eq.  91,  was 
also  cited.  That  was  a  case  where  the  marriage  was  duly  solem- 
nized but  the  woman  was  a  lunatic  at  the  time,  and  at  no  time  after- 
wards was  in  the  possession  of  her  faculties,  "  so  as  to  be  capable 
of  judging  of  her  rights  or  interests  or  of  making  or  confirming  a 
contract."  So  the  very  learned  disquisition  on  the  question, 
whether  if  she  had  been  restored  to  sound  mind,  the  marriage  of 
such  an  one  as  could  have  been  confirmed  by  her  subsequent  assent 
and  cohabitation,  was  extra  judicial,  and  in  regard  to  it  "the  doc- 
tors differ,"  for  Bishop  in  his  learned  treatise,  sees.  188,  189,  190, 
inclines  to  the  opinion  in  his  comments  on  that  case,  that  such  a 
marriage  could  be  confirmed,  and  calls  attention  to  the  fact  that  the 
passage  in  "  Poynter  on  Marriage,"  relied  on  in  Crump  v.  Morgan,  was 
misapprehended,  for  the  author  had  reference  to  marriages  void  for 
the  want  of  due  solemnity,  as  where  the  party  officiating  was  not 
a  minister  of  the  gospel,  or  where  there  was  the  impediment  of  a 
former  pre-existing  marriage,  and  he  establishes  by  the  authority 


40  CONTRACT   01-    MARRIAGE. 

cited,  sees.  122  and  123,  that  marriages  under  fraud,  terror  or 
duress,  though  generally  spoken  of  in  the  books  as  void,  are  in 
effect,  only  voidable,  and  may  be  confirmed  by  subsequent  consent 
and  voluntary  cohabitation  as  man  and  wife.  However  this  may  be, 
we  think  it  clear,  that  the  statute  under  consideration,  does  not 
abrogate  the  principle  of  the  common  law  in  respect  to  marriages 
where  both  of  the  parties,  or  one  of  them,  are  under  the  age  of  con- 
sent; and,  although  the  marriage  is  imperfect  for  the  want  of  capa- 
city, it  may  be  confirmed,  and  the  effect  of  the  statute  is  only  to 
change  the  age  of  consent  so  as  to  make  it  conform  to  our  more 
northern  latitude.  There  is  no  error. 
Per  Curiam.     Judgment  affirmed. 


MUNSON,  J.,   IX  FISHER  V.   BERNARD. 

65   Vt.   664,   666. —  1893. 

The  petitioner  seeks  an  annulment  of  the  marriage  of  his  daughter, 
contracted  when  she  was  thirteen  years  of  age,  on  the  ground  that 
she  was  then  within  the  period  of  disability.  R.  L.  2,349  provides 
for  the  annulment  of  a  marriage  when  either  party  had  not,  at  the 
time  of  the  marriage,  attained  "  the  age  of  legal  consent."  By  No. 
63,  Acts  of  1886,  the  age  under  which  a  female  person  was  held  inca- 
pable of  consenting  to  unlawful  carnal  knowledge  was  raised  to  four- 
teen 'years,  and  the  petitioner  contends  that  this  alteration  effects 
an  extension  of  the  period  within  which  a  female  child  is  disabled 
from  contracting  marriage. 

From  1 791  to  18S6  the  age  of  consent  as  regards  unlawful  carnal 
knowledge  was  fixed  by  statute  at  eleven  years.  At  common  law 
males  under  fourteen  and  females  under  twelve  were  incapable  of 
contracting  a  binding  marriage.  *  *  *  j^  ^nay  be  true  that  the 
phrase  "  age  of  legal  consent  "  is  sometimes  applied  to  age  of  con- 
sent established  by  the  statute  relating  to  unlawful  carnal  knowl- 
edge; but  we  find  nothing  to  indicate  that  the  Legislature  used  it 
with  reference  to  that  limit  in  providing  for  a  sentence  of  nullity,  or 
supposed  that  in  raising  the  age  of  consent  by  the  act  of  1886  it  was 
effecting  a  like  change  in  the  age  of  capacity  to  contract  marriage. 
There  is  certainly  no  difficulty  in  believing  that  the  Legislature 
intended  by  the  latter  statute  to  guard  a  female  child  from  unlawful 
carnal  knowledge  for  a  time  after  she  was  capable  of  contracting  a 
binding  marriage.  We  hold  that  the  period  of  disability  to  contract 
marriage  is  that  of  the  common  law. 


NON-AGE   OF    A   PARTY.  4I 


STATE  EX  REL.  SCOTT  v.  LOWELL  ET  AL. 

78  Minn.  166.  —  1899. 

Application  by  the  state,  on  the  relation  of  Alex.  W.  Scott,  in 
behalf  of  Sadie  Scott,  for  a  writ  of  habeas  corpus  against  Fred  L. 
Lowell  and  Phil  T.  Megaarden.  Judgment  for  respondents.  On  a 
trial  de  noz'o,  judgment  entered  for  relator. 

Start,  C.  J.  On  October  18,  1899,  the  relator,  Alexander  W. 
Scott,  a  man  32  years  of  age,  and  Sadie  Lowell,  a  girl  then  only  13 
years  and  11  months  old,  the  daughter  of  the  respondent  Fred  L. 
Lowell,  were  married,  without  the  consent  of  her  parents,  in  due 
form,  by  an  ordained  minister  of  the  gospel,  upon  the  presentation 
of  a  license  in  due  form,  issued  by  the  clerk  of  the  proper  county. 
Cohabitation  as  husband  and  wife  followed  the  marriage,  but  on  the 
next  day  thereafter  the  father  went  to  the  house  of  the  husband  and 
forcibly  took  his  daughter  away,  against  her  will  and  wishes,  and 
detained  her.  Thereupon  a  writ  of  habeas  corpus  in  her  behalf  was 
sued  out  of  the  District  Court  for  the  county  of  Hennepin,  on  the 
relation  of  her  husband.  Upon  a  hearing  on  the  return  of  the  writ 
the  court  discharged  the  writ,  and  remanded  the  wife  to  the  custody 
and  control  of  her  father,  from  which  order  the  relator  appealed  to 
this  court.  The  cause  was  here  heard  de  novo,  pursuant  to  Laws 
1895,  c.  327.  A  referee  was  appointed  to  take  and  report  the  evidence, 
who  did  so.  The  evidence  establishes  the  facts  we  have  already 
stated,  and,  further,  that  the  husband  is  an  industrious  man,  who 
has  a  home,  and  is  able  to  support  a  wife  and  family,  and  that  his 
wife  is  ready  and  anxious  to  return  to  and  live  with  him  as  her  hus- 
band, if  relieved  from  the  restraint  of  her  father.  The  wisdom  of 
this  marriage,  or  the  propriety  of  the  relator's  conduct  in  inducing 
this  young  girl  to  marry  him,  are  questions  which  it  is  not  our  prov- 
ince to  discuss  or  characterize.  Moralize  as  we  may,  the  fact 
remains  that  the  parties  were  married,  and  the  marriage  has  been 
consummated;  hence  we  are  now  simply  to  inquire  dispassionately 
as  to  the  legal  status  of  the  parties.  The  question  presented  by  the 
record  is,  was  this  marriage  void  or  voidable,  and,  if  the  latter,  did 
it  emancipate  the  wife  from  the  custody  of  her  father. 

The  common  law  established  the  age  of  consent  to  the  marriage 
contract  at  14  years  for  males  and  12  years  for  females,  but  our  stat- 
ute (Gen.  St.  1894,  §  4769)  provides  "that  every  male  person  who 
has  attained  the  full  age  of  eighteen  years  and  every  female  who  has 
attained  the  full  age  of  fifteen  years,  is  capable  in  law  of  contracting 


42  CONTRACT   OF    MARRIAGE. 

marriage  if  otherwise  competent."  But  the  statute  does  not  declare 
that,  if  a  marriage  is  entered  into  when  one  or  both  of  the  parties 
are  under  the  age  limit  prescribed,  the  marriage  shall  be  void.  It 
does,  however,  impose  restrictions  and  penalties  upon  public  officers 
and  clergymen,  for  the  purpose  of  preventing,  so  far  as  possible, 
such  marriages  being  solemnized  ;  but  the  statute  has,  for  wise  rea- 
sons, stopped  short  of  declaring  such  marriages  void.  Such  being 
the  case,  we  hold,  upon  principle  and  authority,  that  the  marriage  of 
a  person  who  has  not  reached  the  age  of  competency  as  established 
by  the  statute,  but  is  competent  by  the  common  law,  is  not  void,  but 
voidable  only  by  a  judicial  decree  of  nullity  at  the  election  of  the 
party  under  the  age  of  legal  consent,  to  be  exercised  at  any  time 
before  reaching  such  age,  or  afterwards,  if  the  parties  have  not  vol- 
untarily cohabited  as  husband  and  wife  after  reaching  the  age  of 
consent.  Gen.  St.  1894,  §§  4769,  4786,  4788,  4789;  Schouler  Dom. 
Rel.,  §  20;  14  Am.  &  Eng.  Enc.  Law,  488;  i  Bish.  Mar.  &  Div., 
§  145;  Beggs  v.  State,  55  Ala.  108;  Eliot  v.  Eliot,  77  Wis.  634,  46  N. 
W.  806;  State  v.  Cone,  86  Wis.  498,  57  N.  W.  50.  The  marriage 
being  voidable,  it  must  be  treated  as  valid  for  all  civil  purposes  until 
annulled  by  judicial  decree.     Schouler,  Dom.  Rel.,  §  14. 

Now,  the  question  of  the  right  of  the  respondent,  as  father  of  the 
relator's  wife,  to  restrain  her  from  going  to  her  husband,  must  be 
determined  upon  the  basis  that  the  marriage  is  valid.  The  marriage 
of  a  minor,  even  without  the  parent's  consent,  emancipates  the  child 
from  the  custody  of  the  parent;  for  the  marriage  creates  relations 
inconsistent  with  subjection  to  the  control  of  the  parent.  Parental 
rights  must  yield  to  the  necessities  of  the  new  status  of  the  child. 
I  Bish.  Mar.  &  Div.,  §  275;  Schouler  Dom.  Rel.,  §  267.  The  cor- 
rectness of  this  proposition  as  a  general  rule  is  admitted,  but  it  is 
claimed  on  behalf  of  the  father  that  it  does  not  apply  to  this  case, 
because  the  husband  cannot  enforce  his  marital  rights  without  the 
consent  of  the  wife,  and  that  she  cannot,  by  giving  her  consent  to  a 
voidable  marriage,  free  herself  from  parental  control,  and,  further, 
that  she  cannot  do  so  until  she  reaches  the  age  when  she  can  legally 
affirm  the  marriage;  that  to  hold  otherwise  would  enable  a  girl  under 
12  and  over  7  years  of  age  to  emancipate  herself  by  consenting  to  a 
voidable  marriage.  This  course  of  reasoning  ignores  the  fact  that 
the  marriage,  until  set  aside,  must  be,  for  all  civil  purposes,  treated 
as  valid,  and  that  it  is  her  new  and  inconsistent  status  as  a  wife 
which  emancipates  her  from  the  control  of  her  father.  A  wife  —  and 
this  girl  must  be  regarded  as  such  for  the  purposes  of  this  case  — 
certainly  has  the  capacity  to  consent  to  live  with  her  husband. 
Whether  the  marriage  of  a  child  under  12  years  of  age  and  over  7 


NON-AGE   OF   A   PARTY.  '  43 

years  would  emancipate  her,  we  need  not  determine.  It  would  seem, 
however,  that  the  operation  of  natural  laws  would  incapacitate  her 
in  fact  from  assuming  the  new  and  inconsistent  relations  which 
emancipate  a  minor  from  parental  control.  Our  conclusion  is  that 
the  respondent  is  not  legally  entitled  to  detain  his  daughter,  if  she 
elects  to  return  and  live  with  her  husband.  Therefore  it  is  ordered 
that  Sadie  Scott,  the  wife  of  the  relator,  Alex.  W.  Scott,  be  freed 
from  the  restraint  of  her  father,  the  respondent  Fred  L.  Lowell,  and 
that  he  surrender  her  to  the  relator,  if  she  elects  to  live  with  him  as 
her  husband.     Let  judgment  be  so  entered. 


44  CUMKACr    Ul-    MAKKIACL. 

Mejital  Incapacity  of  a  Party. 

POWELL  :■.  POWELL. 

i8  Kan.   371.  — 1877. 

Error  from  Xeosho  District  Court. 

HoRTON,  C.  J  An  action  was  commenced  in  January,  1875,  in 
the  District  Court  of  Neosho  county,  by  Margaret  Powell  to  obtain 
a  divorce  from  James  L.  Powell.  The  causes  alleged  in  the  petition 
were  the  impotency  of  the  defendant,  and  extreme  cruelty  on  his 
jiart  toward  the  plaintiff.  The  petition  also  stated  that  the  defend- 
ant was  at  the  time  of  the  marriage,  and  at  the  time  that  the  plain- 
tiff contracted  to  marry  the  defendant,  afflicted  with  insanity,  which 
then  and  long  after  the  marriage  was  wholly  unknown  to  the  plain- 
tiff; that  the  defendant  had  continued  insane  from  the  time  of  the 
marriage  to  the  commencement  of  the  action,  and  that  his  insanity 
had  continually  grown  worse;  that  on  or  about  June  nth,  1872,  he 
was  committed  to  the  insane  asylum  at  Osawatomie,  and  had  since 
that  time  been  confined  in  the  asylum.  Service  of  the  summons 
was  made  on  the  guardian  of  the  defendant  in  pursuance  of  sec.  2)^ 
of  chapter  60,  Gen.  Stat.  557.  No  answer  was  filed,  and  no  proof 
offered,  the  court  entered  a  decree  of  divorce  releasing  the  parties 
from  the  obligations  of  the  marriage,  giving  the  custody  of  the  chil- 
dren born  in  wedlock  to  the  plaintiff,  and  adjudging  that  the  plain- 
tiff should  have,  enjoy,  and  possess  as  alimony,  certain  real  estate 
with  the  right  to  sell  the  same  at  her  pleasure.  Eleven  months 
afterwards,  a  motion  was  made  by  James  L.  Powell,  by  his  counsel, 
John  C.  Carpenter,  Esq.,  to  vacate  and  set  aside  the  judgment,  as 
wholly  void,  because  the  petition  did  not  state  facts  sufficient  to  con- 
stitute a  cause  of  action.  On  29th  December,  1875,  the  court  sus- 
tained the  motion,  and  ordered  an  entry  to  be  made  that  the  judg- 
ment should  be  set  aside  as  void,  and  held  for  naught.  To  this 
action  of  the  court  the  plaintiff  excepted  and  asks  that  it  be 
reversed. 

Under  the  allegations  in  the  petition,  we  must  assume  that  the  de- 
fendant was  insane  at  the  time  of  the  alleged  acts  of  cruelty,  and, 
as  a  sequence,  was  mentally  incapable  of  knowing  what  he  did.  Under 
such  circumstances,  on  very  familiar  principles,  he  could  not  be  held 
responsible  for  his  acts,  and  we  do  not  think  the  acts  thus  com- 
mitted a  sufficient  cause  for  divorce.  As  insanity  itself,  after 
marriage,  is  no  cause  for  a  divorce,  nothing  which  is  a  consequence 
of  it  can   be.      The  counsel   for   plaintiff  do  not   dispute  this  con- 


MENTAL  INCArACITY  OF  A  PARTY.  45 

elusion,  but  insist  that  the  petition  should  be  so  construed  that 
the  defendant  had  lucid  intervals,  and  that  thereupon,  proof  was 
introduced  that  the  defendant  was  sane  at  the  commission  of  the 
acts  complained  of.  Unfortunately  for  this  theory,  there  is  no 
room  for  this  construction.  The  allegations  in  the  petitions  are 
broad  and  sweeping.  It  is  asserted  "  that  the  defendant  was  at 
the  time  of  the  marriage,  and  has  continued  to  be  and  still  remains 
insane,  and  that  his  insanity  has  continually  grown  worse."  The 
extreme  cruelty  alleged,  occurred  June  ist,  1872,  and  ten  days  after- 
ward the  defendant  was  taken  to  the  insane  asylum.  If  the  de- 
fendant had  lucid  intervals,  and  committed  any  act  for  which  he  was 
responsible  during  such  time,  upon  which  a  decree  of  divorce  could 
be  based,  the  petition  should  have  so  stated.  In  the  absence  of  any 
such  allegation,  we  cannot  presume,  against  the  averment  to  the 
contrary,  that  the  defendant  was  sane  at  the  commission  of  the 
alleged  acts  of  cruelty.     The  petition  excludes  the  idea. 

Counsel  for  plaintiff  admit  that  the  statements  concerning  impo- 
tency  set  forth  in  the  petition  are  insufficient,  and  should  be  treated 
as  surplusage;  hence,  we  need  only  say,  as  to  that  alleged  cause  for 
divorce,  that  our  statute  in  that  regard  is  to  be  interpreted  in  har- 
mony with  the  common  law;  and  when  the  Legislature  enacted  that 
a  divorce  might  be  granted  for  impotency,  it  was  intended  that  the 
impotence  must  have  existed  at  the  time  of  the  marriage.  If  a  per- 
son should  become  impotent  after  marriage,  the  marriage  is  good, 
and  no  ground  of  divorce  exists  therefor.  Such  is  the  universal 
doctrine. 

The  only  serious  question  in  this  case  is,  the  effect  of  the  aver- 
ments of  the  insanity  of  the  defendant  at  the  time  plaintiff  con- 
tracted to  marry  him,  his  insanity  at  the  date  of  such  marriage, 
and  the  continuance  of  such  insanity.  The  marriage  of  an  in- 
sane person  is  absolutely  void,  by  reason  of  the  want  of  capac- 
ity of  such  a  party  to  contract;  and  in  this  case,  if  the  allegations 
in  the  petition  are  true,  the  marriage  of  the  plaintiff  and  defend- 
ant was  null  and  void,  and  has  never  since  obtained  any  validity, 
because  the  defendant  has  never  been  in  any  mental  condition 
to  ratify  or  consummate  it.  Not  only  was  there  no  marriage  de 
jure,  but  it  would  also  be  a  misnomer  to  call  it  a  marriage  de  facto, 
although  law  writers  thus  frequently  designate  it.  It  was  a  nullity, 
and  the  plaintiff  is  in  no  way  bound  to  defendant  by  any  marriage 
relation.  The  concurring  assent  of  the  two  minds  was  wanting. 
The  plaintiff  is  as  free  from  the  defendant  as  if  the  court  below  had 
pronounced  the  decree  of  nullity,  as  no  judgment  was  necessary  to 
restore  the  parties  to  their  original  rights.     The  fitness  and  pro- 


46  CONTRACT   OF    MARRIAGE. 

priety  of  a  judicial  decision  prontnincing  the  nullity  of  such  mar- 
riage, is  supported,  because  conducive  to  good  order  and  decorum, 
and  to  the  peace  and  conscience  of  the  party  seeking  it.  IVcight- 
man  v.  IVe'ig/itmu/i,  4  Johns,  ("h.  343;  Kawdoi  v.  Rawdon,  28  Ala. 
565.  Another  reason  why  a  judicial  determination  of  such  a  mar- 
riage ought  to  be  sanctioned,  is,  that  an  opportunity  should  be 
given,  when  the  evidence  is  obtainable,  and  the  jxirtics  living,  to 
have  the  proof  of  such  marriage  being  void  preserved  in  the  form  of 
a  judicial  record,  so  that  it  cannot  be  disputed  or  denied.  But  in 
the  case  at  bar,  the  cause  was  prosecuted,  tried,  and  decided,  as  a 
"  divorce  suit  "  under  the  provisions  of  the  code.  This  is  more 
apparent  when  we  fully  examine  the  record.  Permission  was 
obtained  to  amend  the  petition,  and  two  statutory  causes  for  which 
divorces  are  granted  were  inserted;  the  maiden  name  of  the  plain- 
tiff was  omitted;  the  petition  was  verified;  the  children's  names 
were  set  forth,  with  the  surname  of  the  defendant;  the  real  estate 
of  the  defendant  was  specifically  described,  and  in  the  prayer  for 
relief  the  court  was  asked  to  grant  a  divorce,  to  divide  the  real 
estate,  to  give  $3,000  as  alimony,  and  to  award  the  custody  of  the 
children  to  plaintiff.  The  court,  in  rendering  judgment,  granted  all 
the  relief  prayed  for,  but  instead  of  dividing  the  real  estate,  decreed 
all  of  it  as  alimony  to  the  plaintiff  who  had  assumed  and  retained 
the  name  of  the  defendant.  Under  the  particular  circumstances  of 
this  case,  we  cannot  construe  the  action  as  one  prosecuted  to  have 
a  void  marriage  pronounced  a  nullity,  and  that  therefore  the  action 
of  the  court  below,  in  vacating  and  setting  aside  the  judgment  for 
being  void,  was  not  erroneous. 

It  is  immaterial  whether  the  defendant,  or  his  attorney,  had  the 
right  to  appear  and  make  such  motion  or  not.  If  the  judgment  was 
void,  no  injury  resulted  to  the  plaintiff  from  the  order  of  the  court; 
and  holding  the  judgment  void,  we  cannot  interfere  with  the  action 
of  the  District  Court.  If  the  judgment  in  this  case  could  be  con- 
strued as  a  decree  annulling  a  void  marriage,  so  much  of  the  judg- 
ment as  awards  alimony  to  the  plaintiff  would  be  nugatory.  We 
view  the  case  as  the  court  below  considered  it,  and  treat  it  as  that 
court  treated  it,  simply  as  an  action  for  divorce  and  alimony,  under 
the  provisions  of  the  code.  Any  other  construction  by  us  would  be 
grossly  unjust  to  all  the  parties  to  the  proceeding,  and  especially  so 
to  the  plaintiff.  It  is  doubtful  whether  the  plaintiff  would  be  will- 
ing to  accept  the  original  judgment  attempted  to  be  rendered,  if  she 
was  fully  acquainted  with  the  consequences  which  would  result  if  we 
were  to  hold  the  judgment  valid  so  far  as  determining  the  marriage 
void  ab  initio  by  reason  of  the  insanity  of  the  defendant.     A  sentence 


MENTAL    INCAPACITY    OF   A   PARTY.  47 

of  nullity  like  this  would  strip  her  of  all  alimony,  deprive  her  of  all 
interest  in  the  property  of  defendant,  and  bastardize  her  children. 
We  make  these  last  remarks  more  freely,  because  the  counsel  for 
the  plaintiff  in  this  court  state  in  their  brief  "  that  they  first  became 
connected  with  the  case  after  the  filing  of  a  motion  to  vacate  the 
judgment,  and  hence  are  not  responsible  for  the  pleadings." 

If,  upon  full  consideration,  the  plaintiff  still  wishes  to  end  the 
mesalliance  between  herself  and  the  defendant  by  a  sentence  of 
nullity  declaring  void  the  marriage  for  want  of  sufficient  mental 
capacity  of  the  defendant,  with  consent  of  the  court  below,  she  can 
amend  her  petition,  and  prosecute  the  suit  to  final  judgment, 
or  she  may  disregard  the  proceedings  had  and  commence  de  novo. 
Sec.  648  of  the  Code  (Gen.  Stat.  p.  759),  does  not  in  any  manner 
restrict  the  plaintiff  from  prosecuting  or  instituting  her  action  to 
annul  a  void  marriage.  Said  section  applies  only  to  incapables,  who 
are  unable  to  contract  marriage  from  want  of  age  or  understanding. 
Independently  of  the  provisions  relating  to  divorce,  the  District 
Court  has  full  jurisdiction  to  afford  the  plaintiff  requisite  relief.  If 
she  wishes  no  judicial  determination  of  the  question,  and  the  defend- 
ant was  insane  at  the  time  of  the  marriage,  and  has  had  no  lucid 
intervals  since,  she  may  treat  such  marriage  as  wholly  void.  So  it  is 
not  correct,  as  the  counsel  for  plaintiff  suggest  in  their  brief,  that  if 
this  judgment  is  not  upheld  the  unfortunate  plaintiff  has  no  relief. 

The  order  of  the  District  Court  in  vacating  the  said  judgment  will 
be  affirmed. 

All  the  judges  concurring. 


LEWIS  V.  LEWIS. 


44  Minn.    124. — 1890. 

Appeal  by  plaintiff  from  a  judgment  of  the  District  Court  for 
Hennepin  county,  where  the  action  (brought  to  annul  the  marriage 
of  the  parties)  was  tried  by  Lochren,  J. 

Vanderburgh,  J.  The  statute  in  relation  to  divorces  (Gen.  Stat. 
1878,  c.  62,  sec.  2),  provides  that  "  when  either  of  the  parties 
*  *  *  for  want  of  age  or  understanding,  is  incapable  of  assenting 
thereto,  *  *  *  ^j^g  marriage  shall  be  void  from  the  time  its 
nullity  is  declared  by  a  court  of  competent  authority."  Certain 
limitations  are  imposed  by  sees.  4  and  5,  as  follows:  "  Nor  shall  the 
marriage  of  any  insane  person  be  adjudged  void  after  his  restoration 
to  reason  if  it  appears  that  the  parties  freely  cohabited  together  as 


48  CONTKACT    OK    MARRIAGE. 

I  usband  and  wife  alter  such  insane  person  was  restored  to  a  sound 
mind."  "  Sec.  5.  No  marriage  shall  be  adjudged  a  nullity  at  the 
sui':  of  a  party  capable  of  contracting,  on  the  ground  that  the  other 
party  was  *  *  *  insane,  if  such  *  *  *  insanity  was  known 
to  the  party  capable  of  contracting,  at  the  time  of  such  marriage." 
There  are  no  other  provisions  on  the  subject  of  insanity,  and  no 
form  of  insanity  or  insane  delusion  is  included  in  the  list  of  causes 
for  divorce;  and  insanity  arising  subsequent  to  the  marriage  affords 
no  ground  for  divorce.  The  section  first  quoted  is  simply  declara- 
tory of  the  common  law.  There  must  have  been,  at  the  time  of  the 
marriage,  such  want  of  understanding  as  to  render  the  party  inca- 
pable of  assenting  to  the  contract  of  marriage.  The  plaintiff  applies 
for  a  decree  of  nullity  on  the  ground  of  his  wife's  insanity  at  the 
time  of  his  marriage,  of  which  he  clai'":">s  to  have  then  had  no  knowl- 
edge. The  particular  form  of  insanity  alleged  was  a  morbid  propen- 
sity on  the  part  of  the  wife  to  steal,  commonly  denominated  "  klep- 
tomania." It  was  not  proved,  nor  is  it  found  by  the  court,  that 
she  was  not  otherwise  sane,  or  that  her  mind  was  so  affected  by  this 
peculiar  propensity  as  to  be  incapable  of  understanding  or  assenting 
to  the  marriage  contract.  Whether  the  subjection  of  the  will  to 
some  vice  or  uncontrollable  impulse,  appetite,  passion,  or  propen- 
sity be  attributed  to  disease,  and  be  considered  a  species  of  insanity, 
or  not,  yet  as  long  as  the  understanding  and  reason  remain  so  far 
unaffected  and  unclouded  that  the  afflicted  person  is  cognizant  of 
the  nature  and  obligation  of  a  contract  entered  into  by  him  or  her 
with  another,  the  case  is  not  one  authorizing  a  decree  avoiding  the 
contract.  Any  other  rule  would  open  the  door  to  great  abuses. 
Anon.,  4  Pick.  32;  St.  George  v.  Biddcford,  76  Me.  593;  Durham  v. 
Durham,  10  Prob.  Div.  80.  For  a  discussion  upon  the  characteris- 
tics of  the  peculiar  infirmity  to  which  the  defendant  here  is  alleged 
to  be  subject,  see  i  VVhart.  &  S.  Med.  Jur.  (4th  ed.),  sees.  591,  595. 
The  cases  are  numerous  in  which  contracts  and  wills  have  been 
uphel  1  by  the  courts,  though  the  party  executing  the  same  is  subject 
to  some  peculiar  form  of  insanity,  so  called,  or  is  laboring  under 
certain  insane  delusions.  In  re  Blakclv' s  Will,  48  Wis.  294  (4  N.  W. 
R"P-  337);  yenkins  v.  Morris,  14  Ch.  D.  674;  11  Am.  &  Eng.  Enc. 
Law,  III,  and  cases. 

The  defendant  is  found  to  have  been  subject  to  this  infirmity  at 
the  time  of  her  marriage  with  plaintiff,  in  1882,  but  it  was  concealed 
and  kept  secret  from  the  plaintiff  by  her  and  her  relatives,  and  was 
not  discovered  by  him  until  1888.  As  before  suggested,  if  it  had 
developed  after  the  marriage,  the  plaintiff  would  not  have  been  en- 
titled  to  judicial  relief,  though  the  consequences  might  have  been 


CONSANGUINITY    OF    PARTIES.  49 

equally  serious  to  him.  But  the  plaintiff  contends  that  such  con- 
cealment constituted  a  case  of  fraud,  such  that  the  court  should 
declare  the  contract  of  marriage  void  on  that  ground.  Where  one  is 
induced,  by  deception  or  strategem,  to  marry  a  person  who  is  under 
legal  disability,  physical  or  mental,  the  fraud  is  an  additional  reason 
why  the  unlawful  contract  should  be  annulled.  And  so  deception  as 
to  the  identity  of  a  person,  artful  practices  and  devices  used  to 
entrap  young,  inexperienced,  or  feeble-minded  persons  into  the  mar- 
riage contract,  especially  when  employed  or  resorted  to  by  those 
occupying  confidential  relations  to  them,  and  where  the  contract  is 
not  subsequently  ratified,  are  proper  cases  for  consideration  of  the 
court.  But,  generally  speaking,  concealment  or  deception  by  one 
of  the  parties  in  respect  to  traits  or  defects  of  character,  habits, 
temper,  reputation,  bodily  health,  and  the  like,  is  not  sufficient 
ground  for  avoiding  a  marriage.  The  parties  must  take  the  burden 
of  informing  themselves,  by  acquaintance  and  satisfactory  inquiry, 
before  entering  into  a  contract  of  the  first  importance  to  themselves 
and  to  society  in  general.  Reynolds  v.  Reynolds^  3  Allen,  605; 
Leavitt  \ .  Leavitt,  13  Mich.  452;  i  Cooley  Bl.  439,  and  notes.  The 
facts  found  do  not  present  a  case  warranting  the  relief  asked. 
Judgment  affirmed. 


Physical  Incapacity  of  a  Party} 

POWELL  V.  POWELL. 
18  Kan.  371. —  1877. 

\Reportcd  hcreiu  at  p.   44.] 


Co7isanguinity  of  Parties. 

SUTTON  V.   WARREN. 

10  Met.  (Mass.)  451. —  1845. 

Assumpsit  on  a  promissory  note  for  $1,300,  given  by  the  defendant 
to  Ann  Sutton,  on  the  loth  of  August,  1840.  The  case  was  sub- 
mitted to  the  court  upon  the  following  facts  agreed  on  by  the  parties : 

The  note  declared  on  was  given  for  money  lent  by  Ann  Sutton  to 
the  defendant.  The  plaintiff  and  said  Ann  Sutton  are  natives  of 
England,  and  were  married  at  Duffield,  in   England,  on  the   28th  of 


See   also,    G v.    G ,    33   Md.    401;    Wendel  v.    Wendel,    30   App.   Div. 

(N.  Y.)447. 

(Domestic  Relations  —  4.! 


50  CONTRACT   OK    MARRIAGE. 

November,  1834.  About  one  year  after  their  marriage,  they  came 
to  this  country,  where  they  have  lived,  as  husband  and  wife,  ever 
since.  The  said  Ann  was  the  own  sister  of  the  mother  of  the  said 
Samuel  Sutton,  the  plaintiff,  and  has  always  since  said  marriage 
gone  by  the  name  of  Ann  Sutton.  Her  former  name  was  Ann  Hills. 
HuBB.'^Ri),  J.  It  is  a  well  settled  principle  in  our  law,  that  mar- 
riages celebrated  in  other  States  or  countries,  if  valid  by  the  law  of 
the  country  where  they  are  celebrated,  are  of  binding  obligation 
within  this  Commonwealth,  although  the  same  might,  by  force  of  our 
laws,  be  held  invalid,  if  contracted  here.  This  principle  has  been 
adopted,  as  best  calculated  to  protect  the  highest  welfare,  of  the 
community  in  the  preservation  of  the  purity  and  happiness  of  the 
most  important  domestic  relations  in  life.  Greenwood  v.  Curtis^ 
6  Mass.  378;  Mcihvay  v.  Needham,  16  Mass.  157;  West  Cambridge  \. 
Lexington,  i  Pick.  506;  Compton  v.  Bearcroft,  Bui.  N.  P.  114;  Scrim- 
shire  V.  Scrimshire,  and  Middleton  v.  yanverin,  2  Haggard,  395,  437. 
There  is  an  exception,  however,  to  this  principle,  in  those  cases 
where  the  marriage  is  considered  as  incestuous  by  the  law  of  Chris- 
tianity, and  as  against  natural  law.  And  these  exceptions  relate  to 
marriages  in  the  direct  lineal  line  of  consanguinity,  and  to  those 
contracted  between  brothers  and  sisters;  and  the  exceptions  rest  on 
the  ground,  that  such  marriages  are  against  the  laws  of  God,  are 
immoral,  and  destructive  of  the  purity  and  happiness  of  domestic 
life.  But  I  am  not  aware  that  these  exceptions,  by  any  general  con- 
sent among  writers  upon  natural  law,  have  been  extended  further, 
or  embraced  other  cases  prohibited  by  the  Levitical  law.  This  sub- 
ject has  been  carefully  discussed  by  Chancellor  Kent,  in  the  case  of 
Wightman\.  Wightman,  4  Johns.  Ch.  343;  and  while  he  is  clear  as 
to  the  exceptions  before  stated,  he  thinks,  beyond  them  there  is  a 
diversity  of  opinion  among  commentators.  2  Kent  Com.  Lect.  26. 
See  also  Story's  Conflict  of  Laws,  sees.  113,  114.  There  is  also  a 
provision  in  our  statute,  making  marriages  void  in  this  State,  where 
persons  resident  in  the  State,  whose  marriage,  if  solemnized  here, 
would  be  void,  in  order  to  evade  our  law,  and  with  the  intention  of 
returning  to  reside  here  again,  go  into  another  State  or  country  and 
there  have  their  marriage  solemnized.  Rev.  Sts.  ch.  75,  sec.  6. 
The  only  object  of  this  provision  is,  as  stated  by  the  commissioners 
in  their  report,  to  enforce  the  observance  of  our  own  laws  upon  our 
own  citizens,  and  not  to  suffer  them  to  violate  regulations  founded 
in  a  lust  regard  to  good  morals  and  sound  policy.  As  to  the  wisdom 
of  this  provision  it  is  unnecessary  here  to  speak.  But  the  provision 
is  notice  to  show  that  it  has  not  been  overlooked  in  the  consideratioa 
of  the  case  at  bar,  which  presents  no  such  state  of  facts. 


PRIOR   MARRIAGE   OF   PARTY.  5  I 

In  view  of  the  whole  matter,  considering  it  as  a  part  of  the  jus 
gentium,  we  do  not  feel  called  upon  to  extend  the  exceptions  further. 
By  our  statutes,  the  marriage  contracted  between  Samuel  Sutton,  the 
plaintiff,  and  Ann  Hills,  his  mother's  sister,  if  celebrated  in  this  State, 
would  have  been  absolutely  void.  But  by  the  law  of  England,  this 
marriage,  at  the  time  it  was  contracted,  viz.,  in  November,  1834,  was 
voidable  only,  and  could  not  be  avoided  until  a  sentence  of  nullity 
could  be  obtained  in  the  spiritual  court,  in  a  suit  instituted  for  that 
purpose.  See  Poynter  on  Marriage  and  Divorce,  86,  120;  2  Ste- 
phen's Com.  280.  In  T/ic  Queen  v.  Inhabitants  of  Wye,  7  Adolph.  & 
Ellis,  771,  and  3  Nev.  &  P.  13,  the  Court  of  Kings  Bench  affirmed 
the  doctrine,  and  held  such  a  marriage  voidable  only,  and  that,  till 
avoided,  it  was  valid  for  all  civil  purposes.  Rose.  Crim.  Ev.  (2d 
ed.),  286.  Since  this  marriage  was  contracted,  the  St.  of  6  Wm.  4, 
c.  54,  has  been  passed,  making  such  marriages  which  should  after- 
wards be  celebrated,  absolutely  void.  In  the  present  case,  the  mar- 
riage of  these  parties  was  not  void  by  the  laws  of  England,  though 
voidable  in  the  spiritual  courts.  It  never  was  avoided,  and  though 
absolutely  prohibited  by  our  laws,  yet  not  being  within  the  excep- 
tion, as  against  natural  law,  we  do  not  feel  warranted  in  saying 
the  parties  are  not  husband  and  wife.  The  plaintiff,  Samuel  Sut- 
ton, sues  on  a  promissory  note  given  to  the  said  Ann  Sutton,  and, 
as  her  husband,  he  can  maintain  an  action  thereon,  in  his  own  name 
alone,  there  being  no  other  cause  of  objection  raised  than  the  one 
stated  in  regard  to  the  legality  of  their  marriage.  Bayley  on  Bills 
(2d  Amer.  ed.),  42;  Clancy,  Husb.  and  Wife,  4. 

Judgment  for  the  plaintiff 


Prior  Marriage  of  a  Party. 

COLLINS  V.  VOORHEES. 

47  N.  J.  Eq.  315.-1890. 

On  appeal  from  a  decree  advised  by  Vice-Chancellor  Van  Fleet. 

Garrison,  J.,  dissenting.  The  attitude  of  dissenting  from  the 
otherwise  unanimous  opinion  of  the  court,  upon  so  grave  a  subject 
as  the  law  of  marriage,  is  so  distasteful  that  I  have  expended  far 
more  effort  in  endeavoring  to  concur  than  I  have  in  the  formulation 
of  these  views,  which,  after  all,  I  find  myself  constrained  to  hold. 

The  question  to  be  determined  upon  this  appeal  is  the  legitimacy 
of  the  children   of  Abraham  and  Caroline  Voorhees,  and  that,   in 


52  CONTRACT   OF    MARRIAGE. 

turn,  depends  upon  whether  the  relation  o{  marriaj^e  existed  between 
their  parents. 

The  claim  of  these  appellants  is,  that  their  father  and  mother  were 
publicly  married,  and  that  they  afterwards  lived  together  as  hus- 
band and  wife,  and  were  universally  and  always  so  reputed.  The 
respondent,  on  the  contrary,  asserts  that  the  ceremonial  marriajre 
was  void,  and  that,  therefore,  no  presumption  of  marriage  can  be 
drawn  from  the  subsequent  matrimonial  conduct  and  reputation  of 
the  parties  thereto.  The  Court  of  Chancery  adopted  this  latter 
view,  and  declared  against  the  legitimacy  of  the  appellants. 

The  facts  are  not  in  dispute.  Abraham  Voorhees  was  married  to 
a  wife  in  New  Jersey,  and  had  by  her  one  child,  a  son.  After  a 
time  Voorhees  separated  from  his  wife,  taking  up  his  residence  in 
the  city  of  New  York,  while  she  remained  in  this  state.  Shortly 
after  this  separation,  Voorhees  brought  a  suit  against  his  wife  for 
divorce  in  the  Superior  Court  of  Connecticut.  Notice  of  the  pend- 
ency of  this  suit  was  mailed  to  the  defendant,  addressed  to  the  hus- 
band's residence  in  New  York,  and,  consequently,  she  did  not 
receive  it.  A  month  later  a  decree  of  divorce  was  pronounced. 
Within  a  short  time  Voorhees  proposed  marriage  to  a  lady  who  re- 
sided in  West  Newton,  Massachusetts,  to  whom,  as  evidence  of  his 
capacity  to  contract  a  lawful  marriage,  he  produced  a  certified  copy 
of  the  record  of  the  decree  rendered  in  the  court  of  Connecticut. 
A  marriage  was  thereupon  consented  to,  and  was  solemnized  by  a 
public  church  wedding  in  the  presence  of  a  large  congregation  of 
the  friends  and  acquaintances  of  the  parties.  Two  months  later  the 
divorced  wife  learned,  for  the  first  time,  of  the  Connecticut  suit, 
and  thereupon  made  an  application  to  that  court  which  resulted  in 
the  opening  of  the  decree  of  divorce,  the  filing  of  a  cross  bill  against 
her  husband,  the  annulling  of  the  first  decree  and  the  granting  of  an 
absolute  divorce  to  the  wife  upon  her  cross  suit.  Of  these  proceed- 
ings Caroline,  who  was  residing  with  Voorhees  in  West  Newton,  was 
kept  in  entire  ignorance,  and  down  to  the  time  of  his  death,  which 
occurred  some  years  later,  was  openly  and  unequivocally  acknowl- 
edged and  reputed  to  be  his  wife.  Two  children  were  the  result  of 
this  union,  both  born  after  the  second  decree  of  divorce.  Abraham 
Voorhees  died  in  1882.  The  father  of  Abraham  was  John  F.  Voor- 
hees. He,  by  his  last  will,  had  given  his  residuary  estate  equally  to 
all  his  children,  the  children  of  the  deceased  child  to  take  the  par- 
ent's share.  The  present  contest  has  arisen  upon  the  filing  of  a  bill 
in  the  Court  of  Chancery  of  New  Jersey  by  the  son  of  Abraham  by 
his  first  marriage,  the  prayer  of  which  is,  that  that  portion  of  the 
grandfather's  estate  which  would  have  come  to  the  said  Abraham 


PRIOR    MARRIAGE    OF    PARTY.  53 

Voorhees,  if   living,  be  paid  over  to  the  complainant  as  the    only 
lawful  child  of  the  said  Abraham. 

From  this  statement  it  is  evident  that  the  sole  question  is  whether, 
upon  the  facts  stated,  the  law  raises,  in  favor  of  the  legitimacy  of  the 
appellants,  a  presumption  of  marriage  between  Caroline  and  Abra- 
ham from  and  after  the  time  when  he  became  capable  of  lawfully 
contracting  marriage.  The  Court  of  Chancery  answered  this  ques- 
tion in  the  negative.  That  decision  this  court  now  affirms,  for  the 
reason  given  by  the  court  below. 

The  principle  of  law  propounded  by  the  learned  judge  who  heard 
the  case  is,  that  "where  actual  marriage  is  shown,  whether  legal  or 
illegal,  the  subsequent  cohabitation  of  the  parties  and  their  reputa- 
tion as  husband  and  wife  must  necessarily  be  understood  as  having 
had  their  origin  in  such  marriage,  and  cannot  be  treated  as  presump- 
tive evidence  of  a  second  marriage  at  a  later  date." 

The  clearness  of  the  language  here  employed,  and  the  line  of  rea- 
soning pursued  permits  no  doubt  as  to  the  precise  meaning  and 
force  ascribed  to  presumptions  of  marriage.  The  reasoning  is  this: 
Marriage  may  be  entered  into  by  mutual  consent  —  that  consent  will 
be  presumed  from  conduct  and  repute  in  cases  where  actual  consent 
has  not  been  shown  —  where  an  actual  contract  is  shown  the  parties 
cannot  in  fact  be  supposed  to  have  consented  a  second  time,  hence 
their  conduct  gives  rise  to  no  presumption  of  marriage.  In  fine, 
there  can  be  no  presumption  of  marriage  where  consent  is  not  a 
logical  inference  from  the  facts  proved ;  and  where  matrimonial 
cohabitation  commenced  by  consent  it  is  illogical  to  refer  its  con- 
tinuance to  a  subsequent  consent. 

The  fallacy  of  this  argument  is,  that  it  assumes  that  the  rule  by 
which  the  law,  from  matrimonial  conduct,  presumes  matrimonial 
consent,  is  a  canon  of  evidence  having  for  its  object  the  ascertain- 
ment of  whether  in  point  of  fact  consent  was  interchanged,  and,  if 
so,  at  what  period  of  time;  whereas,  it  is  easily  demonstrable  that 
the  doctrine  in  question  is  founded  on  public  policy  and  is  uniformly 
applied  upon  principles  other  than  those  which  regulate  the  laws  of 
proof  or  prescribe  the  form  of  the  syllogism. 

The  narrow  rule  promulgated  by  the  court  appears  to  me  to  be 
subversive  of  this  important  principle  of  public  law,  and  to  be  out  of 
harmony  with  the  entire  weight  of  authority  upon  this  subject. 

A  somewhat  similar  view  of  the  law  was,  it  is  true,  at  one  time 
supposed  to  receive  support  from  the  cases  of  Cunningham  v.  Cnh- 
mng/ia?n,  decided  in  Lord  Eldon's  time,  and  Lapsieyy.  Grierson,  which 
was  before  Lord  Cottenham  in  1848.  The  proposition,  which  these 
cases  were  thought  to  hold  was,  that  if  parties,  either  because  of 


54  CONTRACT   OF    MARRIAGE. 

legal  impediments  or  from  mere  wantonness,  entered  upon  a  course 
of  illicit  cohabitation,  their  subsequent  matrimonial  conduct,  with 
its  resulting  reputation,  would,  as  matter  of  law,  be  so  colored  b)'  its 
original  meretriciousness  that  no  matrimonial  consent  could  be  pre- 
sumed. In  1867  the  case  of  Campbell  v.  Campbell  was  before  the 
House  of  Lords  upon  this  precise  point,  and  it  was  the  opinion  of 
every  judge  that  the  doctrine  above  stated  received  no  support  what- 
soever from  either  of  the  cases  cited  or  from  any  case,  while  the 
doctrine  itself  was  distinctly  and  emphatically  repudiated.  This 
case  {Campbell  v.  Campbell),  often  spoken  of  as  "  The  Breadalbane 
Case,"  has,  since  its  decision,  been  universally  accepted  as  the  lead- 
ing authority  upon  the  doctrine  of  the  presumption  of  marriage. 
The  facts  of  the  case  are  these:  James  Campbell  had  eloped  with  a 
young  wife  of  a  middle-aged  grocer  named  Ludlow.  They  fled  to 
Canada,  where  they  lived  in  connubial  constancy  and  repute  until 
after  the  death  of  Ludlow,  of  which,  however,  there  was  no  proof 
that  either  of  them  ever  heard.  They  returned  to  England,  and, 
after  the  birth  of  a  son,  settled  in  Scotland,  where  they  passed  them- 
selves off  uniformly,  unequivocally  and  constantly  as  man  and  wife. 
The  case  came  before  the  courts,  and  ultimately  before  the  House 
of  Lords,  upon  the  claim  of  the  grandson  to  the  estates  of  Breadal- 
bane in  the  right  of  his  father.  The  claimant's  father  was  born  in 
England  after  the  return  of  his  parents-from  Canada,  and  after  the 
death  of  Ludlow,  the  first  husband  of  his  mother.  The  case  turned, 
therefore,  upon  the  question  of  the  legitimacy  of  the  claimant's 
father,  and  that  depended  upon  whether  his  parents  were  lawfully 
intermarried.  The  chief  contention  pressed,  as  matter  of  law,  against 
the  presumption  of  marriage  was,  that  the  original  coming  together 
of  the  parties  having  been  meretricious,  their  subsequent  conduct 
must  be  referred  to  that  illicit  relationship,  and  could  not,  in  law, 
raise  the  presumption  that  the  parties  had  contracted  a  subsequent 
marriage.  In  his  opinion  to  the  House  of  Lords  upon  this  point, 
Lord  Westbury  said:  "The  appellant  objects  that  the  cohabita- 
tion, which  began  when  the  parties  were  incapable  of  contracting 
marriage,  and  which  was  continued  without  change,  is  ineffectual  to 
form  the  basis  of  the  conclusion  that  consent  to  marry  was  inter- 
changed after  the  impediment  to  marriage  had  been  removed.  That 
would  be  a  very  important  rule  if  it  were  proved  to  be  well  founded ; 
but  I  am  unable  to  find  any  principle  to  justify  the  introduction  of 
such  a  rule,  and  what  is  more  material  to  the  purpose,  I  am  unable 
to  find  any  case  or  any  book  of  authority  in  which  that  principle  has 
been  either  followed  out  into  a  decision  or  has  been  laid  down  as  a 
rule  of  Scotch  law.      It  appears  to  be  almost  entirely  derived  by  the 


PRIOR    MARRIAGE   OF   PARTY.  55 

appellant  from  what  I  conceive  to  be  a  misapprehension  of  certain 
words  found  in  the  judgments  delivered  in  Cunningham  v.  Cunning- 
ham and  Lapsley  v.  Gricrson,  or  rather  (if  I  may  venture  to  say  so), 
from  misapprehension  of  part  of  a  marginal  note  to  one  of  those 
cases.  There  is  nothing  (in  those  cases)  to  warrant  the  proposition 
that  the  subsequent  conduct  of  the  parties  shall  be  rendered  ineffec- 
tual to  prove  marriage  by  reason  of  the  existence  at  a  previous 
period  of  some  bar  to  the  interchange  of  consent.  It  would  be  very 
unfortunate  if  it  were  so.  There  is  no  foundation  for  the  argument, 
that  the  matrimonial  consent  must,  of  necessity,  be  referred  to  the 
commencement  of  the  cohabitation,  nor  any  warrant  for  the  appel- 
lant's ingenious  argument,  that  as  the  consent  interchanged  must  be 
referred  to  some  particular  point  —  which  he  insisted  was  at  the 
commencement  of  the  cohabitation,  and  therefore  insufficient  —  the 
cohabitation  which  continued  afterwards  without  interruption  would 
warrant  no  other  conclusion  than  that  which  would  be  warranted  by 
the  consent  interchanged  at  a  time  when  it  was  insufficient.  I  should 
undoubtedly  oppose  to  that  another  and,  I  think,  a  sounder  rule  and 
principle  of  law,  namely,  that  you  must  infer  consent  to  have  been 
given  at  the  first  moment  when  you  find  the  parties  able  to  enter 
into  the  contract." 

To  the  same  effect  were  the  opinions  delivered  by  Lord  Chelms- 
ford, lord  chancellor,  and  Lord  Cranworth. 

The  Breadalbane  Case  was  decided  in  1867.  L.  R.  i  H.  L.  Cas. 
182.  At  a  later  period,  in  1876,  the  House  of  Lords  was  called 
upon,  in  the  case  of  DeThoren  v.  The  Attorney- General^  to  deal  with 
a  set  of  facts  in  all  respects  the  exact  counterpart  of  the  case  which 
is  now  before  this  court.  The  case  is  reported  in  i  App.  Cas. 
L.  R.  686. 

The  point  before  the  court  in  that  case  is  thus  stated  by  Lord 
Chelmsford:  "The  question,"  he  says,  "to  be  determined  is, 
whether  there  was  a  consent  to  a  marriage  between  William  Ellis 
Wall  and  Sarah  Ogg,  evinced  by  habit  and  repute,  prior  to  the  birth 
of  the  elder  of  their  sons.  If  there  were  no  other  question  than  this 
in  the  case,  there  would  be  no  difficulty  in  giving  an  answer  in  the 
affirmative.  But  the  appellant,  although  he  admits  that  there  had 
been  such  cohabitation  of  the  parties  as  husband  and  wife  as  in 
ordinary  cases  would  have  conclusively  established  the  presumption 
of  a  marriage  by  consent,  yet  contends  that  the  circumstance  of  a 
previous  ceremony  of  marriage  having  taken  place  between  the  par- 
ties, which  was  invalid,  though  unknown  to  them  to  be  so,  prevented 
that  presumption.  The  ground  of  this  argument  is,  that  the  living 
together  of  the  parties  as  husband  and  wife  must  be  attributed  to 


56  CONTRACT   OF    MARRIAGE. 

the    invalid    ceremony,    and,    therefore,    that    the    habit   and    repute 
could  not  be  evidence  of  any  other  consent." 

The  invalidity  of  the  ceremonial  marriage  alluded  to  was,  that  the 
husband  was  not,  at  the  time  of  his  second  marriage,  lawfully 
divorced  from  his  first  wife,  and  although  he  became  a  divorced  man 
shortly  afterwards,  neither  he  nor  his  second  wife  appear  to  have 
known  of  the  removal  of  the  impediment.  It  is  evident  that  every 
question  raised  by  the  case  in  hand  was  presented  also  upon  the  facts 
of  that  case.  By  the  unanimous  judgment  of  the  House  of  Lords  it 
was  decided : 

1.  That  the  subsequent  cohabitation  and  reputation  were  not  to  be 
referred  to  the  inefficient  ceremony,  even  though  the  parties  did  not 
know  of  the  removal  of  the  impediment  to  their  original  marriage. 

2.  Where  parties  are  cohabiting  matrimonially  but  unlawfully,  be- 
cause of  impediment  in  their  marriage,  matrimonial  consent  must  be 
presumed  to  have  been  interchanged  as  soon  as  the  parties  were  en- 
abled, by  the  removal  of  the  impediment,  to  enter  into  the  contract. 

3.  The  ceremony,  although  invalid,  was  a  consent  by  the  parties 
to  a  cohabitation  which  was  matrimonial  in  cliaracter,  and  their 
subsequent  cohabitation  was  proof  of  a  continuing  consent  thereto. 

To  the  principles  thus  announced  I  give  an  unqualified  assent.  It 
is  especially  material  to  the  matter  in  hand  to  note  that  in  every 
opinion  delivered  the  doctrine  of  presumption  of  consent  is  treated 
as  a  principle  having  its  root  in  public  policy.  At  no  time  was  it 
regarded  as  a  rule  of  evidence  for  determining  whether  the  parties 
had  interchanged  consent.  Such  a  consideration  is  evidently  out  of 
place,  for  the  reason  that  the  whole  fabric  of  the  doctrine  rests  upon 
the  necessity  of  presuming  something  which  is  not  proven,  and  that 
something  is  consent,  and  consent  at  a  time  favorable  to  the  end 
which  the  rule  of  public  policy  has  in  view.  That  end  is  the  uniform 
reference  of  matrimonial  conduct  to  the  status  of  marriage,  for  it  is 
with  the  status  of  marriage  society  is  chiefly  concerned.  The  con- 
tract is  made  by  the  parties  without  consulting  society;  the  status  xs 
imposed  by  society  without  consulting  the  parties.  The  contract 
may  be  actual  and  ceremonial,  or  actual  and  non-ceremonial,  or  it 
may  be  neither  actual  nor  ceremonial,  but  simply  presumed  from  the 
policy  of  the  law.  That  policy  is,  as  I  have  said,  that  all  matrimo- 
nial conduct  shall,  if  possible,  be  referred  to  a  matrimonial  status. 
Where  the  marriage  is  actual  the  status  at  once  arises,  in  order  that 
connubial  conduct  and  repute  may  be  under  its  sanction ;  and  where 
the  conduct  and  repute  are  matrimonial,  consent  is  presumed  in 
order  that  the  status  may  at  once  arise.  If,  at  the  time  of  the  com- 
mencement of  matrimonial  conduct  and  reputation,  there  is  impedi- 


PRIOR   MARRIAGE   OF   PARTY. 


57 


ment  to  the  application  of  this  doctrine,  the  rule  of  public  policy  is 
not  thereby  defeated;  it  remains  in  abeyance,  to  be  imposed  at  the 
first  moment  when  conduct  and  capacity  shall  so  co-exist  as  to  ren- 
der it  possible.  If  an  actual  marriage  has  been  solemnized,  thai 
circumstance,  so  far  from  frustrating  the  policy  of  the  law,  affords 
the  strongest  possible  case  for  its  application;  for  where  the  charac- 
ter of  the  consent  is  not  in  question,  but  simply  its  legality,  the 
status  of  marriage  should  arise  at  the  earliest  moment  when  the  par- 
ties are  enabled  lawfully  to  do  that  which  they  had  theretofore  in- 
effectually attempted. 

From  the  broad  principle  thus  laid  down  we  turn  to  the  decision 
of  the  case  in  hand,  the  doctrine  of  which  is,  that  consent  cannot  be 
presumed  from  matrimonial  conduct  and  reputation  in  any  case  in 
which  the  parties  have  actually  celebrated  a  marriage  to  which,  in 
their  own  minds,  they  referred  their  conduct.  In  support  of  this 
proposition  two  cases  are  cited  in  the  opinion  adopted  by  this 
court  —  O' Gara  v.  Eisenlohr,  38  N.  Y.  296,  and  Cartwright  v.  Mc- 
Gozufi,  121  111.  388.  No  such  doctrine  is  laid  down  by  these  cases, 
nor  do  the  facts  of  either  case  call  for  or  admit  of  such  conclusion. 

O' Gara  v.  Eisenlohr  was  a  case  in  which  the  original  union  of  the 
parties  was  illicit,  because  the  man  had  a  wife  living  the  date  of 
whose  death  was  unknown.  The  court  was  asked  to  raise  the  pre- 
sumption that  her  death  had  occurred  between  certain  years.  The 
case  turned  entirely  upon  the  law  relative  to  presumptions  of  death, 
and  does  not  touch  the  doctrine  concerning  the  presumptions  of 
marriage.  If  it  is  possible  to  regard  this  case  as  an  authority  upon 
the  proposition  now  before  us,  its  weight  is  entirely  against  the 
position  of  the  court  below,  in  that  it  mentions  with  approval  the 
cases  of  Fenton  w.  Reed,  4  Johns.  52,  and  Rose  v.  Clark,  8  Paige,  574, 
in  both  of  which  the  doctrine  which  I  am  now  seeking  to  enforce  is 
declared  in  the  clearest  manner. 

In  Fenton  v.  Reed  the  facts  were,  that  after  the  prolonged  absence 
of  her  husband  the  plaintiff  married  Reed.  Subsequently  the  first 
husband  came  back,  the  plaintiff  and  Reed  continuing,  however,  to 
live  together  as  man  and  wife  until  and  after  the  death  of  plaintiff's 
first  husband.  The  court  held  that,  upon  this  state  of  facts,  it  was 
a  question  for  the  jury  whether  the  circumstance  of  this  cohabita- 
tion evinced  a  marriage,  other  than  the  actual  one,  occurring  after 
the  death  of  the  first  husband. 

In  Rose  v.  Clark  the  facts  were  substantially  those  of  Fentoti  v. 
Reed.  Chancellor  Walworth,  in  reviewing  the  cases,  says:  "  It 
appears  from  the  decisions  in  our  own  courts,  as  well  as  in  England, 
that  a  subsequent  marriage  may  be  inferred  from  acts  of  recogni- 


58  CONTRACT   OK    MARRIAGE. 

tioii,  continued  matrimonial  cohabitation  and  general  reputation, 
even  where  the  parties  originally  came  together  under  a  void  con- 
tract of  marriage." 

It  may,  I  think,  be  safely  asserted  that  no  case  can  be  found  in 
the  New  York  reports  from  1809,  when  Fenton  v.  i?^*?^  was  decided, 
down  to  Gall  v.  Gall,^  decided  in  1889,  in  which  any  different  doc- 
trine has  been  held  or  even  intimated. 

The  other  case  relied  upon  is  Cartwright  v.  McGown,  in  which  the 
facts  did  not  raise  the  question  presented  by  the  case  before  us,  but 
in  which,  strangely  enough,  the  judge  who  delivered  the  opinion  of 
the  court  imagined,  as  an  illustration,  just  such  a  state  of  facts  as 
that  with  which  we  have  to  deal,  and  said:  "  That  in  such  a  case 
the  presumption  of  marriage  would  apply  even  though  the  parties 
may  not  have  known  of  the  removal  of  the  impediment  to  their 
original  marriage." 

The  doctrine  of  the  present  case  derives,  therefore,  no  support 
from  the  only  cases  cited  as  sustaining  it.  If  any  authority  for  such 
a  doctrine  exists  elsewhere  I  have  failed  to  discover  it.  It  stands,  as 
it  appears  to  me,  as  an  innovation  upon  established  law  upon  a  most 
important  branch  of  jurisprudence,  and  is  radically  destructive  of 
the  principle  of  public  policy  to  which  I  have  alluded,  the  uniform 
application  of  which  is  illustrated,  amongst  others,  by  the  distin- 
guished authority  to  which  I  have  referred. 

For  these  reasons  I  cannot  vote  to  affirm  the  judgment  rendered 
in  the  Court  of  Chancery.' 

For  reversal  —  Garrison  (the  majority  of  the  court  being  for 
affirmance). 

A  motion  having  been  subsequently  made  for  re-argument,  the 
same  was  refused,  the  opinion  of  the  court  being  delivered  as  fol- 
lows by  Beasley,  J.      (Reported  in  47  N.  J.  Eq.  556.) 

Beasley,  C.  J.  This  motion  is  refused,  and  the  record  is 
ordered  to  be  remitted. 

Inasmuch  as  it  appears  that  counsel  has  misconceived  the 
ground  on  which  this  case  was  decided  by  this  court,  it  seems  proper 
that  I  should  state  that  ground  as  it  was  understood  by  me. 

This  court  was  called  upon  to  apply  the  law  to  the  following  facts, 
viz.:  In  the  year  1867  one  Abraham  Voorhees  brought  suit  in  the 
Superior  Court  of  Connecticut  for  divorce  against  his  wife  Camilla 
for  desertion.  This  proceeding  was  a  fraud  from  beginning  to  end, 
on  the  part  of  the  plaintiff.  No  notice  of  it  was  given  to  the  wife, 
who  at  the  time  was  a  resident  of  this  state,  and,   consequently, 

'  114  N.  Y.  109;  see,  also,  Hynes  v.  McDermott,  91  N.  Y.  451. 

'  See,  also,  Adger  v.  Ackerman,  115  Fed.  124  ;  Barker  v.  Valentine,  125  Mich,  336. 


PRIOR    MARRIAGE   OF   PARTY.  59 

according  to  the  decision  of  this  court  in  the  case  of  Doughty  v. 
Doughty,  I  Stew.  Eq.  581,  the  decree  that  ensued  was,  in  this  juris- 
diction, an  absolute  nullity.  This  being  the  situation  Voorhees 
married  a  second  time,  and  the  question  to  be  decided  was  with 
respect  to  the  validity  of  this  latter  marriage.  On  that  subject  this 
court  held,  in  the  first  place,  that  inasmuch  as  the  divorce  granted 
in  Connecticut  was  absolutely  void  in  this  State,  such  second  mar- 
riage had  no  legal  force  whatever.  This  was  a  necessary  conclu- 
sion, as  long  as  the  case  just  cited  remained  unreversed.  But 
another  question  arose.  It  appeared  that  after  this  second  marriage 
the  first  wife  obtained  a  divorce  from  her  husband,  and  that  subse- 
quently to  that  occurrence  Voorhees  cohabited  with  his  so-called 
second  wife,  and  treated  her  before  the  world  as  though  he  were 
married  to  her.  And  it  was  urged  that  such  cohabitation  formed  the 
basis  of  an  inference  that  there  had  been  an  interchange  of  consent 
to  marriage  after  the  dissolution  of  the  first  marriage.  This  infer- 
ence was  rejected  by  this  court  on  two  grounds:  First,  that  an 
interchange  of  consent  was  not  to  be  deduced  from  cohabitation 
accompanied  with  matrimonial  habit  and  repute,  in  a  case  wherein  it 
appeared  that  the  parties  had  been  living  together  as  husband  and 
wife  by  force  of  a  ceremonious  marriage,  to  which  as  a  valid  act  one 
of  the  parties,  in  point  of  fact,  had  not  assented.  The  court  found 
as  a  fact  in  this  case  that  the  husband,  Voorhees,  knew  that  he  had 
no  legal  power  or  right  to  contract  this  second  marriage ;  that  he  was 
aware  that  the  divorce  fraudulently  obtained  by  him  was  a  nullity; 
what  he  did  consent  to  was  to  deceive  the  so-called  second  wife  and 
to  live  with  her  with  the  appearance  of  being  married  to  her;  he  did 
not  consent  to  marry  her  in  any  legal  sense  whatever.  Under  these 
circumstances,  this  court  decided  that  his  continued  cohabitation 
with  this  woman,  after  the  obstacle  to  their  marriage  had  been 
removed,  did  not  prove  that  he  had  changed  his  original  intent, 
which  was  to  live  with  her  without  being  legally  married  to  her.  It 
was  deemed  that  cohabitation  with  habit  and  repute,  being  accom- 
paniments of  the  original  status,  could  not,  per  se,  be  taken  as  proof 
that  a  new  status  had  been  agreed  to  by  the  parties.  Voorhees,  as 
just  stated,  had  consented  to  an  illegitimate  connection,  attended 
with  the  concomitants  of  habit  and  repute.  The  continuance  of 
such  concomitants  could  not,  by  their  unassisted  probative  force, 
lead,  with  any  show  of  reasoning,  to  the  conclusion  that  the  man, 
when  he  was  at  liberty  to  form  a  legal  connection  with  the  woman, 
had  embraced  the  opportunity.  To  treat  evidence  which  was  in  all 
respects  and  to  the  utmost  degree  in  accord  with  the  original  pur- 
pose as  proving,  proprio  vigore,  a  change  of  such  purpose,  appeared 


6o  CONTRACT    OF    MARRIACF. 

to  be  not  only  inadmissible  aocordini;  to  legal  rules,  but  as  being  in 
logic  ridiculous. 

This  construction  of  the  evidence,  it  was  believed,  stood  opposed 
to  but  a  single  case,  which  is  that  of  Breadalbane,  reported  in  L.  R. 
2  H.  L.  Sc.  269.  The  doctrine  of  that  case  is  supported  by  nothing 
that  preceded  or  that  has  followed  it,  and  i ;  altogether  anomalous, 
and,  as  it  seems  to  me,  it  was  properly  rejected  by  this  court.  In 
that  case  the  court  acted  upon  the  principle,  that  if  a  man  and 
woman  agreed  to  live  together  adulterously,  with  a  simulation  of 
marriage,  that  there  should  be  an  inference  of  a  subsequent  valid 
marriage,  from  the  fact  that  such  simulation  had  been  continued 
after  the  death  of  the  husband  of  the  adulteress.  Why  such  an 
inference  is  to  be  thus  deduced  is  not  apparent,  unless  it  be  for  the 
promotion  of  adultery.  By  its  prevalence  the  adulterous  purpose  is 
converted  into  a  matrimonial  purpose,  without  a  particle  of  reason- 
able evidence  in  support  of  the  alleged  change  of  intention.  Such 
a  course  is  opposed,  as  it  seems  to  me,  to  morals  and  public  policy. 
Lord  Westbury  read  the  opinion  in  the  case,  and  he  has  no  better 
reason  to  offer  in  favor  of  the  principle  adopted  than  that  he  can 
find  no  ruling  the  other  way.  He  does  not  pretend  that  he  can  find 
anything  in  its  favor,  and  in  his  remarks  he  strangely  compares  the 
case  before  him  with  those  instances  where  the  parties  intended 
originally  to  marry  and  not  to  commit  adultery,  their  intent  being 
frustrated  by  the  existence  of  some  unknown  obstacle.  And  yet  it 
is  presumed  that  no  one  who  will  look  with  any  care  into  the  subject 
will  have  the  slightest  doubt  that  these  two  classes  of  cases,  with 
respect  to  the  methods  of  their  proof,  respectively  rest  upon  entirely 
different  foundations;  for  when  the  parties  have  intended  marriage, 
being  ignorant  of  an  existing  impediment,  all  that  is  to  be  estab- 
lished by  cohabitation  apparently  matrimonial,  subsecjuent  to  the 
removal  of  such  impediment,  is  the  carrying  into  effect  by  the  par- 
ties of  their  original  purpose;  but  when  the  original  purpose  was  to 
live  in  adultery,  the  evidence,  under  similar  circumstances,  must  be 
sufficient  to  show  an  abandonment  of  such  purpose  and  the  execu- 
tion of  a  new  one.  These  lines  of  cases  can  be  confounded  only  by 
want  of  careful  observation  of  the  principles  upon  which  they  rest- 

Nor  in  the  present  case  would  the  result  have  been  varied  if  the 
rule  thus  rejected  had  been  adopted,  for  the  evidence  before  the 
court,  reasonably  construed,  would  have  been  deemed  to  be  opposed 
to  the  contention  of  the  appellants. 

The  proofs  on  the  subject  amount  to  demonstration.  The  second 
wife  was  one  of  the  witnesses  in  the  cause,  and  she  testified  that  she 
never  knew,  or  had  the  least  intimation,  until  after  the  death  of  her 


MARRIAGE    liNDUCED    bV    I'RAUD.  6l 

husband,  that  the  validity  of  their  marriage  was,  in  any  respect, 
called  in  question;  and  when  she  was  asked,  "  Was  any  other  mar- 
riage ceremony  ever  performed  in  v/hich  you  and  Abraham  Voorhees 
were  the  contracting  parties  ?  "  her  answer  was  "  There  was  not." 
Further  than  this,  she  was  then  fully  examined  by  her  own  counsel, 
and  she  made  no  pretense  of  any  other  interchange  of  consent  to 
marriage  between  herself  and  the  ^  man  she  cohabited  with  except 
such  as  had  been  given  at  the  time  of  their  ceremonious  nuptials. 
Most  certainly  this  evidence,  if  we  apply  to  it  the  ordinary  legal 
tests,  is  entirely  conclusive,  and  absolutely  proves  that  there  never 
was  any  second  marriage,  in  any  form  whatever,  between  these  par- 
ties. It  is  to  be  borne  in  mind  that  cohabitation  with  matrimonial 
habit  and  repute  is,  standing  alone,  nothing  more  than  testimony  in 
proof  of  marriage ;  the  conduct  of  the  persons  to  whom  it  relates 
does  not  constitute  marriage,  and,  consequently,  from  its  evidential 
nature  it  is  liable  to  be  rebutted  by  other  proofs.  This,  as  has 
been  already  said,  was  done  in  the  present  instance. 


Marriage  Induced  by  Fraud. 
HARRISON  V.  HARRISON. 

94  Mich.   559.— 1893. 

Appeal  from  Gratiot. 

Bill  for  divorce.  Defendant  appeals.  Affirmed,  and  case  re- 
manded, with  directions  to  permit  the  defendant  to  verify  his 
answer,  and  for  a  decree  in  his  favor  annulling  the  marriage. 

Hooker,  C.  J.  *  *  *  The  proof  convinces  us  that  complain- 
ant was  enceinte  at  the  time  of  her  marriage,  and  that  she  succeeded 
in  making  him  believe  that  the  child^  born  something  over  six 
months  after  the  marriage,  was  premature  and  legitimate;  and  we 
see  no  evidence  of  condonation  or  of  cohabitation  after  discovery  of 
the  truth. 

Pregnancy  before  marriage,  concealed  from  the  husband,  who  has 
not,  previous  to  marriage,  sustained  improper  relations  with  the 
wife,  is  a  fraud  which  is  sufficient  ground  for  annulling  the  marriage, 
if  the  discovery  of  the  fact  is  followed  by  a  cessation  of  cohabitation, 
and  abandonment.  Baker  v.  Baker,  13  Cal.  87;  Bitter  v.  Bitter, 
5  Blackf.  81;  Beynolds  v.  Beynolds,  3  Allen,  605;  Morris  v.  Morris, 
Wright,  630;  Carris  v.  Carris,  24  N.  J.  Eq.  516.  This  rule  seems 
to  be  recognized  in  the  case  of  Sissung  v.  Sissung,  65  Mich.  180. 


62  CONTRACT   OF    MARRIAGE. 

The  answer  lacks  the  verification  required  by  the  statute  to  be 
appended  to  bills  for  divorce.  Answers  in  the  nature  of  cross-bills 
require  this,  and  no  decree  can  be  granted  without  it.  But  it  may 
be  amended.  The  proof  shows  an  absence  of  collusion,  and  we  will, 
therefore,  remand  the  case,  with  direction  that  such  amendment  be 
permitted,  and  thereupon  a  decree  be  entered  by  the  Circuit  Court, 
in  chancery,  dismissing  complainant's  bill,  and  annulling  the  mar- 
riage, as  prayed  by  defendant. 

The  complainant  will  recover  costs  of  this  court. 

The  other  justices  concurred.' 


FARLEY  V.  FARLEY. 
94  Ala.   561. —  1S91. 

Appeal  from  the  Chancery  Court  of  Montgomery, 
The  bill  in  this  case  was  filed  on  the  i8th  of  September,  1890,  by 
Mrs.  Daisy  Farley,  as  the  wife  of  Hoxie  C.  Farley,  and  sought  a  divorce 
from  her  husband  on  the  ground  of  abandonment  and  adultery,  and 
also  alimony.  The  bill  alleged  that  the  marriage  was  celebrated  on 
the  6th  of  May,  1890,  and  that  the  complainant  "  is  over  the  age  of 
eighteen  years;  "  and  further,  that  a  fraud  was  practiced  upon  her 
in  the  performance  of  the  marriage  ceremony  by  a  person  who  had 
no  authority  to  perform  it,  and  without  a  license  from  the  judge  of 
probate  though  she  was  told  that  one  had  been  procured.  There 
was  a  demurrer  to  the  bill,  assigning  various  grounds  of  demurrer; 
and  the  decree  overruUng  the  demurrer  is  here  assigned  as  error. 

Per  Curiam.  *  *  *  Complainant  consented,  in  fact  became 
the  wife  of  defendant,  though  beguiled  into  the  assumption  at  that 
time,  of  the  status  of  marriage,  by  misrepresentations  of  the  legality 
and  binding  effect  of  the  formal  ceremony.  The  precise  question  is, 
when  there  is  an  executory  agreement  to  marry,  with  the  under- 
standing that  the  parties  were  not  to  become  husband  and  wife  with- 
out formal  solemnization,  what  is  the  effect  of  an  intervening  cere- 
mony, without  license,  performed  by  a  person  unauthorized,  imposed 
on  complainant  by  false  pretenses  and  representations,  but  believed 
by  her  to  be  lawful  and  bona  fide  ?  A  marriage  procured  by  decep- 
tion and  fraud,  except,  it  may  be,  of  certain  kinds  and  magnitude,  is 
not  absolutely  void,  but  only  voidable,  and  valid  for  all  civil  pur- 
poses unless  and  until  avoided  by  the  deceived  party.  The  party 
imposed  upon  may  disaffirm  or  ratify  the  contract  of  marriage  after 
discovery  of  the  fraud ;  and,  it  has  been  held,  that  voluntary  cohabi- 

'  Contra,  with  a  criticism  of  American  cases.  Moss  v.  Moss,  [1S97J  L.  R.  P.  D. 
263. 


MARRIAGE   INDUCED    BY    FRAUD.  63 

tation  thereafter  as  husband  and  wife  is  a  ratification.  As  under  the 
rule  declared  in  Jycggs  v.  State,  supra,  a  valid  marriage  may  be  con- 
stituted without  license  and  solemnization,  merely  by  the  consent  of 
the  parties,  certainly  complainant  may  ratify  her  consent  to  an 
immediate  marriage,  procured  by  false  representations,  and  thus, 
by  relation,  render  the  marriage  good  ab  initio.  The  contract, 
however,  can  be  avoided  only  by  the  party  defrauded.  Says  Mr. 
Bishop:  "The  doctrine  seems  to  require  no  qualificatiofi,  that  a 
voidable  marriage  is,  until  the  act  or  sentence  transpires  which 
renders  it  void,  as  good  for  every  purpose  as  if  it  contained  no 
infirmity." — i  Bishop's  Mar.  .  &  Div.  sec.  116.  If,  in  answer  to 
the  usual  questions,  though  propounded  by  a  person  not  authorized 
to  solemnize  the  marriage,  both  parties  consented  to  a  union, 
defendant  is  estopped  from  asserting  that  the  consent  was  not 
mutual,  or  that  he  did  not  consent;  he  will  not  be  permitted  to  take 
advantage  of  his  own  wrong  and  fraud  to  escape  the  duties  and 
responsibilities  of  the  marital  relation.  "  The  party  who  commits  a 
fraud  is  bound,  and  remains  bound,  until  the  party  deceived  has 
made  his  or  her  election  and  will  thereafter  be  bound,  or  not, 
according  to  the  election  made." — Tonippert  v.  Tomppert,  13  Bush. 
326;  Hampstead  v.  Plaistow,  49  N.  H.  84;  State  v.  Murphy,  6  Ala. 
765.  The  allegations  of  the  bill,  fairly  construed,  show  that  com- 
plainant elected  to  treat  and  recognize  the  marriage  as  valid. 

The  averment  as  to  the  charge  of  adultery  is,  "  that  said  defend- 
ant has  been  guilty  of  adultery  with  divers  parties  and  persons, 
whose  names  are  unknown  to  your  oratrix."  The  charge  is  averred 
with  a  sufficient  degree  of  certainty.     Hohton  v.  Holston,  23  Ala.  777. 

Affirmed. 

The  opinion  in  this  case  was  prepared  by  the  late  Judge  Clopton, 
and  was  adopted  by  the  court  after  his  death. 


64  CONTRACT   OF    MARRIAGE. 

SMITH  r.  SMITH. 
171   Mass.    404. —  1898. 

Knowlton,  J.  This  libel  is  brought  under  Pub.  St.  c.  145,  §  11, 
the  first  part  of  which  is  as  follows:  "  When  the  validity  of  a  marriage 
is  doubted,  either  party  may  file  a  libel  for  annulling  such  marriage, 
or  when  the  validity  of  the  marriage  is  denied  or  doubted  by  either 
party,  the  other  party  may  file  a  libel  for  affirming  the  same."  The 
omission  of  the  words  "for  fraud  or  other  cause,"  contained  in  Gen. 
St.  c.  107,  §  4,  and  in  St.  1855,  c.  27,  does  not  change  the  meaning 
of  the  provision.  The  statute  assumes  that  there  may  be  marriages 
which  are  legal  in  form,  but  invalid  in  fact.  In  terms,  it  confers 
jurisdiction  upon  the  court,  but,  in  reference  to  the  law  of  marriage, 
it  is  merely  declaratory. 

The  facts  of  the  present  case  are  peculiar.  On  the  day  of  the 
marriage,  soon  after  the  ceremony,  the  libelant  received  information 
that  the  respondent  was  afflicted  with  a  venereal  disease  called 
"syphilis."  She  communicated  the  information  to  her  mother,  who 
immediately  charged  him  with  being  so  afflicted.  He  denied  the 
charge,  but  consented  to  an  examination  by  a  physician.  An  exam- 
ination was  made  that  disclosed  the  fact,  which  the  presiding  justice 
has  found,  that  he  was  constitutionally  afflicted  with  syphilis,  a  con- 
tagious disease,  with  which  the  libelant  would  become  infected  in 
case  of  cohabitation,  "thus  seriously  impairing  her  health,  and 
involving  consequences  of  the  most  grievous  character."  The  judge 
also  found  "that  the  disease  would  be  transmitted  to  any  offspring 
which  they  might  have;  that,  while  it  was  not  absolutely  incurable, 
the  chances  of  a  cure  bemg  effected  in  the  state  in  which  the 
respondent  was  were  very  remote  and  doubtful."  The  libelant,  on 
learning  the  libelee's  condition,  refused  to  live  with  him  as  his  wife, 
and  there  has  been  no  consummation  of  the  marriage.  The  libelee, 
knowing  his  diseased  condition,  induced  the  libelant  to  contract  the 
marriage  without  informing  her  in  regard  to  it.  She  supposed  him 
to  be  a  man  in  good  health  and  of  good  habits,  and,  if  she  had 
known  that  he  was  suffering  from  such  a  disease,  she  would  not 
have  contracted  the  marriage. 

The  statute  to  which  we  have  referred  has  several  times  been 
considered  by  this  court.  Reynolds  v.  Reynolds,  3  Allen,  605; 
Donovan  v.  Doiiovan^  9  Allen,  140;  Foss  v.  Foss^  12  Allen,  26; 
Crehore  v.  Crehore,  97  Mass.  330.  The  fullest  discussion  of  the  law 
applicable   to  a  case  like    this  of  which  we  have  knowledge   is   in 


MARRIAGE    INDUCED    BY    FRAUD.  65 

Reynolds  v.  Reynolds,  ubi  supra.  In  that  case  a  marriage  was  declared 
void  into  which  a  man  was  induced  to  enter  by  confidinjy  m  the 
representations  of  the  woman  whom  he  took  for  his  wife  that  she 
was  chaste,  when  in  fact  she  was  with  child  by  another  man.  It  has 
since  been  held  that,  to  maintain  a. petition  in  such  a  case,  it  is  not 
necessary  to  introduce  evidence  of  express  representations,  and  that 
a  petition  cannot  be  granted  if  it  appears  that  the  petitioner  had 
himself  been  guilty  of  criminal  intercourse  with  the  woman  before 
the  marriage.  The  precise  point  decided  in  Reynolds  v.  Reynolds  has 
been  adjudicated  in  other  states,  and  in  this  country  seems  to  be 
generally  accepted  law.  Baker  v.  Baker,  13  Cal.  87;  Carris  v.  Carris, 
24  N.  J.  Eq.  516.  See,  also,  Morris  v.  Morris,  Wright,  630;  Ritter 
v.  Ritter,  5  Blackf.  81;  Scott  v.  Shufeldt,  5  Paige,  43.  The  law  in 
England  is  held  otherwise.  Afoss  v.  Moss  [1897],  Prob.  Div.  263. 
The  opinion  of  the  learned  chief  justice  to  which  we  have  referred 
treats  of  the  law  in  reference  to  ordinary  contracts  procured  by 
fraud,  and  points  out  the  distinction  between  contracts  to  marry  or 
executory  contracts  of  marriage,  and  executed  contracts  of  marriage. 
There  is  no  reason  why  executory  contracts  of  marriage  should  not 
be  treated,  in  reference  to  the  fraud  of  either  party,  like  any  other 
contracts.  We  think  it  is  well  settled  that  fraud  of  such  a  kind,  in 
its  essential  elements,  as  would  invalidate  an  ordinary  contract,  is  a 
good  defense  to  an  action  upon  a  contract  to  marry.  Van  Hoiiten  v. 
Morse,  162  Mass.  414,  38  N.  E.  705.  But,  after  a  contract  to  marry 
has  ripened  into  a  marriage,  different  considerations  affect  the  case. 
On  grounds  of  public  policy,  the  law  seeks  to  make  the  marriage 
relation  in  every  case  as  nearly  permanent  as  possible  without  doing 
injustice.  The  difference  between  the  relations  of  a  man  and  woman 
affianced  and  their  relations  after  marriage  is  more  than  the  difference 
between  those  who  have  made  an  ordinary  executory  contract  and 
the  same  persons  after  the  contract  is  executed.  At  marriage  there 
is  a  change  of  status  which  affects  them  and  their  posterity  and  the 
whole  community.  It  is  a  change  which,  for  important  reasons,  the 
law  recognizes,  and  it  inaugurates  conditions  and  relations  which 
the  law  takes  under  its  protection.  It  is  of  such  a  nature  that  it 
cannot  lightly  be  disregarded.  The  contracting  parties  take  each 
other  for  better  or  for  worse,  and  agree  to  abide  the  consequences 
of  misinformation  or  mistake  in  regard  to  each  other.  Says  Chief 
Justice  Bigelow  in  Reynolds  v.  Reynolds  :  "  In  the  absence  of  fo  ce  or 
duress,  and  where  there  is  no  mistake  as  to  the  identity  of  the  pt-rson, 
any  error  or  misapprehension  as  to  personal  traits  or  attributes,  or 
concerning  the  position  or  circumstances  in  life  of  a  party,  is  di-  -med 
wholly  immaterial,  and  furnishes  no  good  cause  for  divorce.  Ti  ere- 
[DoMESTic  Relations  —  5.] 


^  CONTRACT   OF   MARRIAGE. 

fore  no  misconception  as  to  the  character,  fortune,  health,  or  temper, 
however  brought  about,  will  support  an  allegation  of  fraud  on  which 
a  dissolution  of  the  marriage  contract,  when  once  executed,  can  be 
obtained  in  a  court  of  justice.  These  are  accidental  qualities  which 
do  not  constitute  the  essential  and  material  elements  on  which  the 
marriage  relation  rests."  The  decree  of  nullity  was  entered  in  that 
case,  not  merely  because  the  libelant  was  deceived  in  regard  to  the 
supposed  chastity  of  the  libelee,  for  it  is  generally  accepted  law  that 
unchastity  of  either  party  before  marriage  will  not  warrant  a  decree 
of  divorce  or  nullity, —  but  because,  besides  the  unchastity,  the 
woman  was  in  such  a  condition  that  she  could  not  properly  assume 
the  duties  of  wifehood.  More  than  that,  she  was  in  a  condition  to 
introduce  into  the  husband's  family  spurious  offspring,  of  which  he 
would  be  presumed  in  law,  if  not  in  fact,  to  be  the  father.  The 
deception,  viewed  in  its  different  aspects,  was  in  regard  to  facts 
essential  to  the  very  existence  of  the  marriage  relation.  Her  con- 
dition in  reference  to  the  objects  of  marriage  was  somewhat  analogous 
to  impotence,  which'  without  reference  to  fraud,  is  always  held  to  be 
a  ground  for  a  decree  of  nullity.  So  far  as  we  are  aware,  this  is  the 
only  particular  in  which  mistake  or  fraud  in  regard  to  the  condition, 
character,  or  experience  of  one  of  the  parties  to  a  marriage  has  been 
held  to  be  a  ground  for  a  decree  of  nullity  or  of  divorce  in  favor  of 
the  other  in  this  commonwealth.  Most  courts  in  other  jurisdictions 
have  gone  no  further  in  favor  of  libelants.  But  in  Cununington  v. 
Belchertown,  149  Mass.  223,  21  N.  E.  435,  it  appeared  that  a  marriage 
was  set  aside  for  fraud  by  a  court  in  New  York,  on  the  ground  that 
the  libelee  had  been  afflicted  with  insanity  before  the  marriage,  and 
had  concealed  the  fact,  and  not  long  afterwards  had  again  become 
insane.  It  was  held  by  this  court  that  the  marriage  could  not  have 
been  declared  invalid  for  this  cause  in  this  commonwealth. 

The  case  at  bar  rests  solely  upon  fraud  in  regard  to  the  bodily 
condition  of  the  libelee.  As  we  have  already  seen,  the  previous  un- 
chastity of  the  libelee  is  not  enough  to  entitle  the  libelant  to  relief. 
Indeed,  we  are  not  quite  certain  from  the  report  that  the  libelee 
might  not  have  been  constitutionally  affected  with  the  disease  from 
his  birth.  But  on  the  findings  of  the  judge  his  concealed  disease  was 
such  as  would  leave  with  him  no  foundation  on  which  the  marriage 
relation  could  properly  rest.  It  had  advanced  to  such  a  stage  as 
probably  to  be  incurable.  The  libelant  could  not  live  with  him  as 
his  wife  without  making  herself  a  victim  for  life,  and  giving  to  her 
offspring,  if  she  had  any,  an  inheritance  of  disease  and  suffering. 
While  this  case  lacks  the  element  of  introducing  a  bastard  child  into 
the  husband's  family,  which  existed  in  Reynolds  v.  Reynolds,  it  has 


MARRIAGE   INDUCED    BY    FRAUD.  67 

the  element  of  a  loathsome,  incurable,  contagious  disease  to  be  com- 
municated to  the  wife,  which  the  other  had  not.  Few,  if  any,  would 
be  bold  enough  to  say  that  it  was  the  duty  of  the  libelant,  on  dis- 
covery of  the  fraud  before  consummation  of  the  marriage,  to  give 
herself  up  as  a  sacrifice,  and  to  become  a  party  to  the  transmission 
of  such  a  disease  to  her  posterity. 

It  may  be  said  that  this  cause  for  a  decree  of  nullity  is  not  differ- 
ent in  kind,  but  only  in  degree,  from  other  bodily  or  mental  con- 
ditions which  the  law  does  not  recognize  as  a  good  ground  for  a 
separation.  There  are  many  peculiarities  of  body  or  mind,  natural 
or  acquired  or  contracted,  which  may  render  one,  in  a  broad  sense, 
unfit  for  matrimony,  and  of  which,  if  concealed  until  after  marriage, 
the  law  can  take  no  cognizance  in  a  suit  for  a  separation.  In  pro- 
ceedings in  court  it  is  more  difficult  to  deal  with  conditions  like  these 
in  the  case  before  us  than  with  that  in  Reynolds  v.  Reynolds,  because 
they  are  obscure,  and  it  is  hard  to  ascertain  the  truth.  For  this 
reason  there  is  more  danger  in  opening  the  door  to  libelants  in  such 
cases.  Yet  there  may  be  circumstances  in  which  justice  requires 
that  relief  should  be  given.  In  Reynolds  v.  Reynolds  much  stress  was 
laid  upon  the  difference  between  an  executory  and  an  executed  con- 
tract of  marriage.  But,  for  fraud  in  procuring  ordinary  contracts, 
the  law  gives  a  remedy  as  well  after  the  contract  is  executed  as 
before.  The  learned  chief  justice  did  not  say  exactly  at  what  stage 
a  contract  of  marriage  should  be  deemed  to  be  executed.  Clearly, 
it  is  executory  up  to  the  time  of  the  ceremony.  Viewed  in  its  legal 
aspect,  it  becomes  a  binding  marriage  as  soon  as  the  ceremony  is 
performed;  but  the  full  execution  of  the  contract  contemplated  by 
the  parties  in  their  original  agreement  is  then  just  beginning,  and  is 
to  continue  during  their  joint  lives.  Their  status  up  to  the  time  of 
the  cermony  is  that  of  parties  to  an  executory  contract.  Their 
status,  as  soon  as  the  ceremony  is  performed,  is  that  of  persons  legally 
married,  who,  with  the  sanction  and  under  the  forms  of  the  law,  have 
assumed  new  relations  to  each  other  and  to  the  state.  But  these  new 
relations  are  then  rather  inchoate  than  complete,  and  they  do  not 
assume  their  perfected  form  so  as  to  have  their  full  possible  effect 
upon  the  parties  and  the  community  until  consummation  of  the  mar- 
riage. There  are  therefore  reasons  why  a  fraud  like  that  in  the 
present  case,  discovered  before  consummation  of  the  marriage,  and 
at  once  made  a  ground  for  separation,  should  move  the  court  more 
strongly  in  favor  of  the  libelant  than  if  the  discovery  had  come  later. 
I  Bish.  Mar.  Div.  &  Sep.  §§  456,  461,  462.  The  reluctance  of  the 
court  to  recognize  such  frauds  as  a  ground  for  legal  proceedings  is 
founded  on  considerations  of  public  policv.     These  considerations 


63  CONTRACT    or    MARRIAGE. 

are  much  less  weighty  in  a  case  like  the  present  than  if  the  parties 
had  cohabited  for  a  considerable  time  before  the  proceedings  were 
commenced.  Although  in  many  cases  the  distinction  between  con- 
summated and  unconsummated  marriages  in  proceedings  for  separa- 
tion has  been  overlooked,  it  is  distinctly  recognized  in  Lyndon  v. 
Lvndon,  69  111.  43,  and  Robertson  v.  Co/e,  12  Tex.  356,  in  each  of 
which  cases  a  decree  of  nullity  was  entered  when  the  court  said  that 
tne  ground  would  have  been  insufficient  if  the  marriage  had  been 
consummated.  We  do  not  intimate  that  the  concealed  existence  of 
venereal  disease  in  one  of  the  parties  to  a  marriage  will  ordinarily 
be  a  sufficient  ground  for  a  decree  of  nullity.  In  most  cases,  pre- 
sumably, the  disease  is  curable.  But,  confining  our  decision  to  the 
facts  before  us,  we  are  of  opinion  that  it  was  in  the  power  of  the 
judge  of  the  Superior  .Court  to  enter  a  decree  for  the  libelant.  Decree 
for  the  libelant.' 


DI  LORENZO  V.   DI  LORENZO. 
174  N.  Y  467.  —  1903. 

This  action  was  brought  to  have  the  marriage  between  the  plain- 
tiff and  the  defendant  annulled  upon  the  ground  that  the  former's 
consent  thereto  was  induced  by  the  fraud  of  the  latter.  It  is  alleged 
in  the  complaint,  in  substance,  that  prior  to  the  marriage  of  the  par- 
ties, in  the  city  of  New  York,  in  November,  1891,  the  defendant 
falsely  represented  to  the  plaintiff  that  in  October,  1891,  during  a 
period  of  time  when  he  was  absent  from  the  state,  she  had  given 
birth  to  a  male  child,  of  which  he  was  the  father,  whom  she  exhibited 
to  him  as  such;  that  he,  believing  these  representations,  and,  in 
order  to  legitimatize  the  child,  was  induced  to  marry  the  defendant; 
that  without  such  representations  he  would  not  have  made  the  mar- 
riage; that  the  defendant's  representations  were  false,  in  that  she 
had  not  given  birth  to  any  child,  but  had  fraudulently  procured  one 
to  produce  to  the  plaintiff  for  the  purpose  of  inducing  him  to  consent 
to  marry  her;  that,  as  a  result  of  the  stratagem,  he  did  marry  her; 
that  there  has  been  no  issue  of  the  marriage;  that  the  falsity  of  these 
representations  was  discovered  but  a  short  time  before  the  com- 
mencement of  the  action,  and  that  since  their  discovery  he  has  not 
cohabited  with  the  defendant.  In  answer  to  the  complaint,  the 
defendant  denied  so  much  of  its  allegations  as  related  to  the  fraudu- 
lent representations,  and  set  up  an  earlier  marriage  with  the  plaii'.till 
'Accord,  Svfttson  v.  Svenson,  178  N.  Y.  54. 


MARRIAGE   INDUCED    BY    FRAUD.  69 

in  1890,  which  was  consummated  by  cohabitation.  After  the  joinder 
of  issue,  the  defendant  moved  for  a  jury  trial,  and  the  trial  court 
framed  specific  questions  of  fact,  which  were  tried  out  before  a  jury, 
who  rendered  a  verdict  upon  each.  The  first  question  was  whether 
the  parties  had  been  earUer  married  by  an  Italian  minister  as  alleged 
by  the  defendant.  To  this  question  the  jury  answered,  "  No."  The 
second  question  was  whether,  in  October,  1891,  or  prior  thereto,  the 
defendant,  for  the  purpose  of  inducing  the  plaintiff  to  marry  her, 
falsely  and  fraudulently  represented  to  him  that,  during  plaintiff's 
absence  from  the  state,  she  had  given  birth  to  a  male  child,  of  which 
he  was  the  father,  and  whether  she  then  and  there  produced  and 
exhibited  said  child  to  him.  To  this  question  the  jury  answered, 
"Yes."  The  third  question  was  whether  the  plaintiff,  relying  upon 
such  representations  of  the  defendant,  and  believing  the  same  to  be 
true,  married  the  defendant  in  November,  189 1,  at  the  city  of  New 
York.  To  this  question  the  jury  answered,  "Yes."  The  fourth 
question  was  whether  said  detendant  gave  birth  to  said  male  child, 
or  to  any  child,  on  or  about  October  5,  1891.  To  this  question  the 
jury  answered,  "  No."  Upon  the  action  coming  on  regularly  to  be 
heard  at  a  Special  Term,  the  court  adopted  these  findings  of  the 
jury,  and  filed  a  decision  embodying  the  facts  established  by  the 
verdict,  and,  further,  finding  that  at  the  time  of  the  marriage  the 
plaintiff  was  seized  of  real  estate  of  the  value  of  $65,000,  as  the  de- 
fendant well  knew;  that  there  had  not  been  any  issue  of  the  marriage; 
that  at  the  time  of  the  marriage  the  parties  were,  and  ever  since 
have  been,  residents  of  the  state;  that  since  the  discovery  of  the 
defendant's  fraud  the  plaintiff"  had  not  cohabited  with  her,  and  that 
the  plaintiff  was  entitled  to  a  judgment  annulling  his  marriage  with 
the  defendant.  The  judgment  entered  upon  the  decision  was 
appealed  from  by  the  defendant  to  the  Appellate  Division  in  the 
Second  Department,  where  it  was  reversed,  and  a  new  trial  was 
ordered.  From  the  order  of  reversal  the  plaintiff  has  appealed  to 
this  court. 

Gray,  J.  The  order  of  the  Appellate  Division  reversed  upon 
questions  of  law  only,  and  the  facts  as  found  by  the  trial  court,  being 
undisturbed  by  the  determination  of  the  Appellate  Division,  must  be 
taken  to  be  true. 

The  theory  of  the  decision  by  the  Appellate  Division,  as  I  under- 
stand it.  is  that  the  fraud  in  this  case  was  insufficient  to  warrant  the 
court  in  annulling  the  marriage  between  the  parties,  and  that  the 
considerations  of  public  policy  which  environ  the  marriage  relation 
as  a  status  so  far  take  it  out  of  the  domain  of  ordinary  contracts  as 


70  CONTRACT  OF  MARRIAGE. 

to  render  this  conclusion  necessary.  It  was  considered  tliat  the  rep- 
resentations of  the  defendant  "worked  no  wrong  for  which  the  law, 
as  at  present  established,"  would  afford  any  remedy,  in  the  right  to 
an  annulment  of  the  marriage.  The  prevailing  opinion  of  the  learned 
court  is  very  elaborate  and  clear,  and  its  conclusions  are  deliberately 
reached  upon  a  careful  consideration  of  the  authorities.  In  my 
opinion,  however,  it  errs  in  failing  to  give  due  effect  to  the  statutory 
provision  relating  to  the  annulment  of  a  marriage  for  fraud,  and  in 
not  giving  to  the  element  of  a  free  and  true  consent  in  a  marriage 
contract  that  high  importance  which  it  has  in  contracts  generally. 

The  question,  therefore,  is  whether,  upon  facts  establishing  that 
the  consent  of  the  plaintiff  to  marry  the  defendant  was  obtained  by 
a  fraudulent  representation  and  by  a  stratagem,  causing  him  to 
believe  that  he  was  the  father  of  the  defendant's  child,  the  fraud 
was  of  such  a  material  nature  as  to  warrant  the  court  in  decreeing 
the  annulment  of  the  marriage  contract.  The  law  of  this  state  with 
respect  to  matrimonial  actions  is  regulated  by  statute.  The  Revised 
Statutes  early  conferred  upon  the  chancellor  the  jurisdiction  to 
declare  a  marriage  contract  void  and  to  annul  the  marriage  (2  Rev. 
St.  [ist  Ed.]  142),  and  the  Code  of  Civil  Procedure,  into  which  their 
provisions  were  carried,  confers  a  general  jurisdiction  upon  the 
courts  of  the  state,  which  may  be  called  into  exercise  for  certain 
causes  existing  at  the  time  of  the  marriage.  One  of  those  causes  is 
stated  to  be  when  "  the  consent  of  one  of  the  parties  was  obtained 
by  force,  duress,  or  fraud;  "  and  the  only  limitation  imposed,  where 
the  action  is  on  the  ground  of  fraud,  is  that  it  must  appear  that  the 
parties  have  not,  at  any  time  before  the  commencement  of  the 
action,  "voluntarily  cohabited  as  husband  and  wife,  with  a  full 
knowledge  of  the  facts  constituting  the  fraud."  Code  of  Civ.  Proc, 
§  1743,  subd.  4;  Id.,  §  1750.  This  language  is  broad,  and  warrants 
but  the  one  reasonable  construction  that  the  fraud  must  be  material 
to  that  degree  that,  had  it  not  been  practiced,  the  party  deceived 
would  not  have  consented  to  the  marriage. 

The  statutes  of  this  state  declare  that  marriage,  so  far  as  its 
validity  in  law  is  concerned,  is  a  civil  contract,  to  which  the  consent 
of  parties  capable  in  law  of  contracting  is  essential.  2  Rev.  St.  [ist 
Ed.]  138.  It  certainly  does  differ  from  ordinary  common-law  con- 
tracts by  reason  of  its  subject-matter  and  of  the  supervision  which 
the  state  exercises  over  the  marriage  relation  which  the  contract 
institutes.  In  such  respects  it  is  sui  generis.  While  the  marriage 
relation,  in  its  legal  aspect,  has  no  peculiar  sanctity,  as  a  social  insti- 
tution, a  due  regard  for  its  consequences  and  for  the  orderly  consti- 
tution of  society  has  caused  it  to  be  regulated  by  laws  in  its  conduct 


MARRIAGE   INDUCED   BY   FRAUD. 


71 


as  in  its  dissolution.  Judge  Story  said  of  it  that  it  is  "something 
more  than  a  mere  contract.  It  is  rather  to  be  deemed  an  institution 
of  society,  founded  upon  the  consent  and  contract  of  the  parties; 
and  in  this  view  it  has  some  peculiarities  in  its  nature,  character, 
operation,  and  extent  of  obligation  different  from  what  belong  to 
ordinary  contracts."  Story's  Conflict  of  Laws,  §  108,  note.  While, 
then,  it  is  true  that  marriage  contracts  are  based  upon  considerations 
peculiar  to  themselves,  and  that  public  policy  is  concerned  with  the 
regulation  of  the  family  relation,  nevertheless  our  law  considers 
marriage  in  no  other  light  than  as  a  civil  contract.  Kiijek  v.  Gold^ 
t?tan,  150  N.  Y.  176,  44  N.  E.  773,  34  L.  R.  A.  156,  55  Am.  St.  Rep. 
670.  The  free  and  full  consent  which  is  of  the  essence  of  all  ordi- 
nary contracts  is  expressly  made  by  the  statute  necessary  to  the 
validity  of  the  marriage  contract.  The  minds  of  the  parties  must 
meet  in  one  intention.  It  is  a  general  rule  that  every  misrepresen- 
tation of  a  material  fact,  made  with  the  intention  to  induce  another 
to  enter  into  an  agreement,  and  without  which  he  would  not  have 
done  so,  justifies  the  court  in  vacating  the  agreement.  It  is  obvious 
that  no  one  would  obligate  himself  by  a  contract  if  he  knew  that  a 
material  representation,  entering  into  the  reason  for  his  consent, 
was  untrue.  There  is  no  valid  reason  for  excepting  the  marriage 
contract  from  the  general  rule. 

In  this  case  the  representation  of  the  defendant  was  as  to  a  fact, 
except  for  the  truth  of  which  the  necessary  consent  of  the  plaintiff 
would  not  have  been  obtained  to  the  marriage.  It  was  designed 
to  create  a  state  of  mind  in  the  plaintiff,  the  operation  of  which 
would  be  to  yield  a  consent  to  marry  the  defendant  in  the  belief 
that  he  was  rectifying  a  great  wrong.  The  minds  of  the  parties  did 
not  meet  upon  a  common  basis  of  operation.  The  artifice  was 
such  as  to  deceive  a  reasonably  prudent  person,  and  to  appeal  to  his 
sense  of  honor  and  of  duty.  The  plaintiff  had  a  right  to  rely  upon 
the  defendant's  statement  of  a  fact,  the  truth  of  which  was  known  to 
her  and  unknown  to  him,  and  he  was  under  no  obligation  to  verify  a 
statement  to  the  truth  of  which  she  had  pledged  herself.  It  was  a 
gross  fraud,  and,  upon  reason,  as  upon  authority,  I  think  it  afforded 
a  sufficient  ground  for  a  decree  annulling  the  marriage  contract. 
The  jurisdiction  of  a  court  of  equity  to  annul  a  marriage  for  fraud  in 
obtaining  it  was  early  asserted  in  this  state  by  the  Court  of  Chancery, 
at  a  time  when  the  limited  powers  of  courts  of  law  were  inadequate 
for  the  purpose.  This  jurisdiction  was  expressly  rested  upon  the 
general  power  to  vacate  contracts  in  all  cases  where  they  had  been 
procured  by  fraud.  From  this  general  jurisdiction  of  equity  a  con- 
tract of  marriage  was   not  regarded  as   being   excepted   when   the 


72  CONTRACT   OK    MARRIAGE. 

assent  to  it  was  the  result  of  artifice  or  of  gross  fraud  See  Ferlat 
V.  Gojon,  Hopk.  Ch.  478;  Burtis  v.  Burtis,  Id.  557.  If,  as  it  was 
observed  by  Chancellor  Sandford  in  Ferlat  v.  Gojon,  supra,  no 
instance  of  the  exercise  of  this  jurisdiction  was  to  be  found  in 
England,  it  was  because  the  ecclesiastical  or  spiritual  courts  had 
cognizance  of  matrimonial  causes;  but  he  said  "  the  jurisdiction  of 
equity  in  cases  of  fraudulent  contracts  seems  sufficiently  compre- 
hensive to  include  the  contract  of  marriage." 

In  Scott  V.  Shiifeldt,  5  Paige  Ch.  43,  the  action  was  to  annul  a 
marriage  which  the  plaintiff  had  been  induced  to  enter  into  in  order 
to  escape  proceedings  under  the  bastardy  act,  which  the  defendant 
had  brought  against  him,  upon  her  oath  that  he  was  the  father  of 
her  child.  He  subsequently  ascertained  that  the  child  was  by  a 
negro.  Chancellor  Walworth  held  that:  "If  the  mother,  at  the 
time  she  charged  him  [the  complainant]  as  the  putative  father,  and 
induced  him  to  marry  her,  under  the  supposition  that  the  child  might 
be  his,  knowing  that  it  was  not  his  child,  but  that  it  was  the  child  of 
a  negro,  she  *  *  *  intentionally  defrauded  the  complainant  in 
such  a  manner  as  to  authorize  the  court  to  declare  the  marriage 
contract  a  nullity."  The  power  that  was  deemed  by  the  Court  of 
Chancery  to  be  inherent  in  the  court  in  the  exercise  of  its  equitable 
jurisdiction  in  cases  of  fraud  was  soon  thereafter  expressly  conferred 
upon  the  courts  by  the  Legislature  of  the  state.  In  Blank  v.  Blank, 
107  N.  Y.  91,  13  N.  E.  615,  the  action  was  to  set  aside  a  judgment 
annulling  a  marriage  contract  between  the  parties  upon  the  ground 
that  the  plaintiff  (the  former  wife)  had  been  induced,  by  untrue 
statements  as  to  the  law,  to  refrain  from  defending  the  action.  The 
fraud  upon  which  the  action  to  annul  the  marriage  had  been  based 
consisted  in  the  woman's  representation  that  she  was  a  widow, 
whereas  she  had  been  collusively  divorced  from  a  former  husband, 
who  was  still  living.  In  affirming  the  judgment  in  favor  of  the 
defendant,  it  was  said  by  Judge  Rapallo,  in  the  opinion,  that, 
"  whether  the  marriage  between  the  defendant  and  the  plaintiff  was 
legal  or  illegal  as  matter  of  law,  the  fraud  by  which  she  was  charged 
with  having  induced  the  defendant  to  enter  into  the  contract  was 
sufficient  to  justify  the  court  in  setting  it  aside,  and  she  does  not  in 
any  manner  attempt  to  deny  that  she  was  guilty  of  the  fraud 
charged." 

Our  attention  has  been  called  to  cases  in  the  courts  of  this  state 
and  of  other  states,  which  seem  to  hold  a  different  doctrine  upon  the 
subject  of  the  judicial  annulment  of  a  marriage  contract.  Whatever 
may  be  said  in  explanation  or  in  differentiation,  I  think  it  is  sufficient 
that  we   rely  upon  the  plain  provision  of  our  statute  and  upon  the 


MARRIAGE   UNDER   DURESS.  73 

application  to  the  case  of  a  contract  of  marriage  of  those  salutary 
and  fundamental  rules  which  are  applicable  to  contracts  generally 
when  determining  their  validity.  If  the  plaintiff  proves  to  the  satis- 
faction of  the  court  that  through  misrepresentation  of  some  fact 
which  was  an  essential  element  in  the  giving  of  his  consent  to  the 
contract  of  marriage,  and  which  was  of  such  a  nature  as  to  deceive 
an  ordinarily  prudent  person,  he  has  been  victimized,  the  court  is 
empowered  to  annul  the  marriage  Such  was  the  judgment  of  the 
trial  court  upon  the  facts  in  this  case,  and  I  think  that  the  learned 
justices  of  the  Appellate  Division,  who  concurred  in  reversing  that 
judgment,  were  in  error  in  holding  that  the  law  of  this  state  afforded 
no  remedy  to  the  plaintiff. 

The  order  appealed  from  should  be  reversed,  and  the  judgment 
entered  upon  the  findings  of  the  Special  Term  should  be  affirmed, 
with  costs  to  the  plaintiff  in  the  Appellate  Division  and  in  this  court. 

Parker,  C.  J.,  and  Bartlett,  Haight,  Martin,  Cullen,  and 
Werner,  JJ.,  concur. 

Order  reversed,  etc.* 


Marriage   Under  Duress. 
TODD  V.  TODD. 

149  Pa.   St.  60.  —  1892. 

Argued  April  6,  1892.  Appeal  No.  273,  Jan.  T.,  1892,  by  appel- 
lant, from  decree  of  C.  P.  No.  2,  Phila.  Co.,  June  T.,  1888,  No.  23, 
dismissing  libel  in  divorce.  Before  Paxson,  C.  J.,  Sterrett,  Wil- 
liams, McCollum  and  Heydrick,  JJ. 

An  answer  having  been  filed,  the  case  was  referred  to  Thomas  B. 
Reeves,  as  master;  and  he  reported  in  favor  of  granting  the  divorce. 

*  See,  also,  Fisk  v.  Fisk,  6  App.  Div.  (N.  Y.)  432. 


74  CONTRACT   OF   MARRIAGE. 

The  facts  appear  in  the  following  opinion  of  the  court  below,  by 
Pennypacker,  J.,  sustaining  exceptions  to  the  master's  report: 

"  It  is  admitted  that  the  parties  to  this  proceeding  in  divorce  had 
had  illicit  intercourse  some  time  in  January,  1885,  and  that  they 
were  married  March  12,  18S5.  The  libel  charges  that  the  respond- 
ent did,  by  fraud,  covin,  deceit  and  duress,  practiced  on  the  libel- 
ant, directly  previous  to  the  time  of  said  marriage,  cause  him  to  be- 
come a  party  to  said  marriage  ceremony,  by  representing  to  him 
that  she  was  pregnant  and  with  child  as  a  result  of  illicit  intercourse 
with  libelant;  and,  by  threats  of  bodily  harm,  made  through  her  sons 
and  other  persons,  and  by  anonymous  letters,  which  libelant  has 
since  ascertained  were  written  by  the  respondent,  procured  and 
induced  the  libelant  against  his  own  free  will  to  become  a  party  to 
said  marriage  ceremony. 

"The  act  of  May  8th,  1854,  provides,  inter  alia,  that  a  divorce  may 
be  granted  '  where  the  alleged  marriage  was  procured  by  fraud, 
force,  or  coercion,  and  has  not  been  subsequently  confirmed  by  the 
acts  of  the  parties.' 

"  The  grounds  upon  which  the  court  is  asked  to  grant  this  divorce 
are,  that  the  respondent  procured  the  marriage  by  fraud  and  by 
duress  per  minas.  The  alleged  fraud  consists  in  the  fact  that  the 
respondent  told  the  libelant  before  the  marriage  that  she  was  preg- 
nant in  consequence  of  the  intercourse  between  them.  In  order  to 
constitute  a  fraud  it  is  necessary  that  the  statement  should  be  untrue 
in  fact  and  that  the  libelant  should  have  been  deceived  by  it.  The 
respondent  testified  that  she  was  pregnant  at  the  time  and  subse- 
quently had  a  miscarriage.  There  was  nothing  to  corroborate  her 
statement  except  the  testimony  of  a  woman  who  judged  by  appear- 
ance, and  whose  testimony  was  shaken  by  testimony  upon  the  part 
of  experts,  that  she  could  not  form  a  correct  conclusion  in  this  way. 
The  master  has  found  as  a  fact  that  the  statement  was  untrue.  But 
was  the  libelant  deceived  by  it  ?  The  intercourse  occurred  in  Janu- 
ary, and  the  marriage  took  place  March  12,  following.  It  may  well 
be  doubted  whether  a  woman  within  that  period  could  herself  have 
any  certainty  as  to  her  condition.  He  nowhere  says  that  he  believed 
the  statement  to  be  true,  and,  in  fact,  the  only  inference  to  be  drawn 
from  his  testimony  is  that  he  did  not  believe  it.  He  says:  '  About 
a  week  after  the  intercourse  referred  to  by  me  she  informed  me  that 
she  was  pregnant,  and  she  persisted  in  stating  this  up  to  the  time  of 
the  marriage.  When  she  first  told  me  she  was  pregnant,  I  told  her 
that  could  not  be,  because  I  thought  she  was  too  old.'  There  is  no 
evidence  of  his  reliance  upon  or  even  belief  in  the  truth  of  her  repre- 
sentation at  the  time  of  the  marriage.     It  is  doubtful  whether  such 


J 


MARRIAGE   UNDER   DURESS.  75 

a  representation,  even  if  false  and  relied  upon  in  good  faith,  woulJ 
constitute  sufficient  ground  for  granting  a  divorce.  Hoffman  v.  Hoff- 
man^ 30  Pa.  417.  It  is  not  alleged  that  there  was  any  force  used 
to  compel  the  marriage,  and  in  order  to  justify  a  divorce  under  the 
statute,  upon  the  ground  of  threats,  they  must  be  such  threats  against 
the  life  or  to  do  bodily  harm  as  would  overpower  the  judgment  and 
coerce  the  will.  There  must  be  such  a  mental  condition,  as  a  result 
of  the  threats,  that  the  libelant  did  not  and  could  not  in  reality  con- 
sent to  the  marriage.  It  does  not  appear,  from  the  evidence,  that 
the  respondent  made  or  knew  of  any  threats  against  the  libelant.  She 
had  two  sons  who  were  young  men.  One  of  them,  at  the  commence- 
ment of  a  dental  college  in  Baltimore,  on  the  5th  of  March  preceding 
the  marriage,  pointed  a  cocked  pistol  at  the  head  of  a  brother  of  the 
libelant,  and  by  this  means  obtained  the  diploma  of  the  libelant. 
At  the  same  time  he  said  that  he  would  hunt  the  libelant  until  he 
found  him  and  then  shoot  him.  These  facts  were  communicated  to 
the  libelant.  Dr.  Winder,  one  of  the  witnesses,  testified  that  a  son 
of  the  respondent  said  to  him,  that'  if  George  Todd  did  not  marry  his 
mother  he  intended  to  kill  him;  '  and  further,  that  he,  witness,  was 
'  perfectly  satisfied  that  they  would  have  killed  him,'  but  whether  or 
not  this  was  brought  to  the  knowledge  of  the  libelant  does  not 
appear.  The  libelant  was  a  man  twenty-seven  years  of  age.  He  was 
in  Syracuse,  New  York,  and  the  respondent  and  her  sons  were  in 
Baltimore.  The  libelant,  in  his  examination  in  chief,  said  nothing 
as  to  the  effect  of  these  threats  upon  him  or  upon  his  actions  in  con- 
senting to  the  marriage,  but,  on  cross-examination,  he  testified: 
'  Q.  Do  you  say  it  was  through  any  fear  of  bodily  harm  that  you 
were  induced  to  marry  the  respondent  ?  A.  I  do.'  This  is  the  only 
evidence  there  is  to  prove  the  coercion  required  by  the  statute. 
Dr.  Winder  wrote  to  the  libelant,  promising  to  protect  him  from  any 
violence  on  the  part  of  the  sons  of  the  respondent  until  the  mar- 
riage ceremony  would  be  performed.  The  libelant  went  of  his  own 
will  to  Baltimore,  and  the  ceremony  was  performed  by  a  clergyman 
in  the  presence  only  of  Dr.  Winder  and  a  wife  of  one  of  the  sons 
of  the  respondent.  No  force  and  no  threats  were  at  that  time 
made. 

"  Dr.  Winder  testified  as  to  a  contemporary  conversation  with  the 
libelant:  '  He  said  either  that  he  was  going  to,  or  that  he  had  mar- 
ried Mrs.  Finney  out  of  respect  for  Dr.  Finney,  and  to  remedy  the 
wrong  he  had  done  him,  and  that  he  would  never  live  with  her  as  his 
wife,  and  that  she  would  never  see  him  again  after  the  ceremony. 
That  he  intended  to  apply  for  a  divorce.  This  conversation  did 
occur  prior  to  the  marriage.' 


76  CONTRACT    OP'    MARRIAGE. 

"  The  libelant  left  the  respondent  immediately  after  the  marriage 
and  the  same  day  wrote  to  her: 

"  '  Mrs.  Finney:  I  cannot  call  you  by  another  name  although  you 
have  it.  I  have  this  day  done  that  which  will  save  your  family  and 
yourself,  and  only  did  it  for  your  sons',  Willie  and  Gordon,  and  your 
daughter's  sake,  not  for  yours.  You  knew  you  were  trying  to  do 
wrong,  and  the  idea  of  your  ever  thinking  of  me  is  ridiculous. 
I  cannot  express  my  contempt  for  you.' 

"  It  seems,  therefore,  to  be  reasonably  clear  that,  while  there  were 
threats  of  bodily  harm  made  by  the  sons,  the  libelant  was  not  coerced 
by  these  threats,  but  that  he  was  induced  to  enter  into  the  marriage 
in  order  to  remedy  the  wrong  and  Save  her  family  from  disgrace,  in 
the  hope  of  speedily  securing  a  divorce. 

"Neither  of  the  grounds  necessary  to  bring  the  case  within  the 
statute  is  made  out,  and  the  exceptions  are,  therefore,  sustained." 

The  libel  was  subsecjuently  dismissed. 

Error  assigned  was  the  dismissal  of  the  libel. 

Per  Curiam y  April  25,  1892: 

While  it  may  seem  harsh  to  refuse  the  libelant  a  divorce,  we  are 
clearly  of  opinion  that  he  has  not  made  out  a  case  within  the  act  of 
assembly.  The  learned  judge  of  the  court  below  has  given  sufficient 
reasons  for  his  decree,  which  render  a  discussion  of  the  case  here 
unnecessary. 

The  decree  is  affirmed,  and  the  appeal  dismissed  at  the  costs  of 
the  appellant. 


Marriage  in  Jest. 
McCLURG  V.  TERRY. 

21   N.   J.   Eq.   225. —  1870. 

The  Chancellor:  The  complainant  seeks  to  have  the  ceremony 
of  marriage  performed  between  herself  and  the  defendant,  in  No- 
vember, 1869,  declared  to  be  a  nullity.  The  ground  on  which  she 
asks  this  decree  is,  that  although  the  ceremony  was  actually  per- 
formed, and  by  a  justice  of  the  peace  of  the  county,  it  was  only  in 
jest,  and  not  intended  to  be  a  contract  of  marriage,  and  that  it  was 
so  understood  at  the  time  by  both  parties,  and  the  others  present; 
and  that  both  parties  have  ever  since  so  considered  and  treated  it, 
and  have  never  lived  together  or  acted  towards  each  other  as  man 
and  wife.  The  bill  and  answer  both  state  these  as  the  facts  of  the 
case,  and  that  neither  party  intended  it  as  a  marriage,  or  was  willing 


MARRIAGE    IN   JEST.  77 

to  take  the  other  as  husband  or  wife.  These  statements  are  eorro'.  - 
orated  by  the  witnesses  present.  The  complainant  is  an  infant  of 
nineteen  years,  and  had  returned  late  in  the  evening  to  Jersey  City, 
from  an  excursion  with  the  defendant  and  a  number  of  young  friends, 
among  whom  was  a  justice  of  the  peace,  and  all  being  in  good  spirits, 
excited  by  the  excursion,  she  in  jest  challenged  the  defendant  to  be 
married  to  her  on  the  spot;  he  in  the  same  spirit  accepted  the  chal- 
lenge, and  the  justice  at  their  request  performed  the  ceremony,  they 
making  the  proper  responses.  The  ceremony  was  in  the  usual  and 
proper  form,  the  justice  doubting  whether  it  was  in  earnest  or  in  jest . 
The  defendant  escorted  the  complainant  to  her  home,  and  left  her 
there  as  usual  on  occasions  of  such  excursions ;  both  acted  and  treated 
the  matter  as  if  no  ceremony  had  taken  place.  After  some  time  the 
friends  of  the  complainant  having  heard  of  the  ceremony,  and  that 
it  had  been  formally  and  properly  performed  before  the  proper 
magistrate,  raised  the  question  and  entertained  doubts  whether  it 
was  not  a  legal  marriage;  and  the  justice  meditated  returning  a 
certificate  of  the  marriage  to  be  recorded  before  the  proper  officer. 
The  bill  seeks  to  have  the  marriage  declared  a  nullity,  and  to  re- 
strain the  justice  from  certifying  it  for  record. 

Mere  words,  without  any  intention  corresponding  to  them,  will 
not  make  a  marriage  or  any  other  civil  contract.  But  the  words  are 
the  evidence  of  such  intention,  and  if  once  exchanged,  it  must  be 
clearly  shown  that  both  parties  intended  and  understood  that  they 
were  not  to  have  effect.  In  this  case  the  evidence  is  clear  that  no 
marriage  was  intended  by  either  party;  that  it  was  a  mere  jest  got 
up  in  the  exuberance  of  spirits  to  amuse  the  company  and  them- 
selves. If  this  is  so,  there  is  no  marriage.  On  this  part  of  the  case 
I  have  no  difficulty. 

I  am  satisfied  that  this  court  has  the  power,  and  that  this  is  a 
proper  case  to  declare  this  marriage  a  nullity. 


CHAPTER  III. 

HUSBAND    AND    WIFE. 

Wifes  Ante-nuptial  Contracts  with    Third  Persons. 
LAMB  V.  BELDEN. 

i6  Ark.   539  —  1855. 

Error  to  the  Circuit  Court  of  Arkansas  County, 

Mr.  Justice  Scott:  This  action  was  commenced  byattachment. 
The  declaration  shows  a  promissory  note  executed  by  Lamb's  wife, 
when  a  fe7fie  sole,  and  her  subsequent  intermarriage  with  Lamb. 
The  attachment  was  levied  in  April,  1854,  upon  goods,  wares  and 
merchandise,  which  were  taken  into  the  custody  of  the  sheriff.  At 
the  October  Term,  1854,  of  the  Arkansas  Circuit  Court,  in  which 
this  cause  was  then  pending,  Lamb  pleaded  that  since  the  institu- 
tion of  this  suit,  to  wit:  on  the  ist  day  of  October,  1854,  his  then 
late  wife  aforesaid  departed  this  life,  whereby  he  became  exonerated 
from  liability  on  the  demand  in  the  declaration  mentioned.  To  this 
plea  the  Beldens  interposed  a  demurrer,  which  the  court  sustained, 
and  Lamb,  electing  to  rest,  the  Beldens  suggested  and  proved  the 
death  of  Mrs.  Lamb,  since  the  commencement  of  this  suit,  and  the 
court  ordered  it  to  abate  as  to  her,  and  proceeded  to  render  final 
judgment  against  Lamb,  who  has  brought  the  case  here  by  writ  of 
error. 

The  authorities  distinctly  show  that  the  husband  is  not  liable  after 
the  death  of  his  wife  for  debts  contracted  by  her  while  2i  feme  sole, 
unless  judgment  has  been  recovered  therefor  against  him  in  the  life- 
time of  his  wife.  Her  death  extinguishes  forever  all  such  liabilities, 
not  at  that  time  in  judgment  against  him.  And  this  is  the  rule, 
both  at  law  and  in  equity,  although  the  husband  may  have  received 
a  fortune  by  his  wife,  (besides  the  authorities  cited  by  the  counsel 
for  the  plaintiff  in  error  to  this  point,  see  Mot-rows  v.  IVhitesides'  Ex., 
10  D.  Mon.  412;  Bucknerw.  Smith,  4  Dessau  R.  371;  Witherspoon  v. 
Dubose,  I  Bayle's  Ch.  R.  166;  Henning's  Edition  of  Noyes' 
Maxims,  35.) 

Under  the  attachment  laws  of  this  State,  the  property  attached, 
in  case  it  be  not  released  in  the  manner  provided,  or  its  proceeds,  if 
perishable,  is  to  remain  in  the  hands  of  the  officer  to  abide  the  judg- 
ment of  the  court  on  the  plaintiff's  demand.     Thus  the  lien  created 

[78] 


wife's  ante-nuptial  contracts  with  third  person.    79 

by  the  statute  can  never  be  of  any  avail  to  the  plaintiff  until  he 
obtains  a  judgment  in  his  favor  upon  his  demand.  Until  then,  his 
lien  is  inchoate  and  imperfect.  If  he  fails  to  establish  his  claim,  and 
judgment  is  rendered  against  him,  his  inchoate  lien  vanishes  at  once. 
Thus  it  is  essentially  dependent  upon  the  judgment  to  be  rendered 
in  the  cause;  where,  therefore,  the  defendant  interposes  by  his  plea, 
as  in  this  case,  an  insuperable  obstacle  to  any  judgment  upon  the 
plaintiff's  demand  in  his  favor,  this  inchoate  lien  must  necessarily  be 
at  end  in  the  judgment  that  will  be  rendered  upon  such  a  plea. 
******** 

In  the  case  before  us  the  law  acts  upon  the  remedy  by  extinguish- 
ing the  right  which  was  dependent  for  its  life  upon  the  life  of  the 
wife. 

The  judgment  must  be  reversed  and  the  cause  remanded. 


GRAY  V.  THACKER. 

4  Ala.    136. —  1842. 

Error  in  the  Circuit  Court  of  Coosa. 

Action  of  debt  commenced  by  the  defendant  against  the  plaintiff 
in  error  before  a  justice  of  the  peace. 

Plaintiff  states  that  Caroline  Burton  made  her  note,  payable  to  the 
plaintiff  for  twenty-one  dollars  and  fifty  cents,  for  value  received, 
dated  4th  February,  1839,  and  due  one  day  after  date.  Since  the 
making  of  said  note,  and  before  the  commencement  of  this  suit,  she 
has  married  said  defendant,  whereby  he  became  liable  to  pay  said 
note  to  the  plaintiff.      Damage  fifty  dollars. 

To  this  statement  the  defendant  craved  oyer  of  the  warrant,  and 
pleaded  in  abatement  a  variance  between  the  warrant  and  the  state- 
ment, in  this,  that  the  warrant  was  sued  out  against  Gray  alone,  and 
the  statement  was  against  him  and  his  wife. 

To  this  plea  the  plaintiff  demurred,  which  the  court  sustained,  and 
gave  judgment  for  the  plaintiff  for  the  debt. 

From  this  judgment  this  writ  is  prosecuted  by  the  defendant  who 
assigns  for  error  — 

1.  The  judgment  of  the  court  sustaining  the  demurrer. 

2.  In  giving  judgment  against  plaintiff  in  error. 

3.  In  giving  judgment  against  plaintiff  in  error  alone,  while  the 
statement  is  against  him  and  his  wife. 

Ormond,  J.  We  consider,  that  in  accordance  with  the  liberality 
which  has  always  been  extended  towards  proceedings  before  justices 


So  HUSHAND    AM)    WIFE. 

of  the  peace,  by  this  court,  the  warrant  may  be  considered  as  sued 
out  against  the  plaintiff  and  wife  jointly,  and  that  the  statement  fol- 
lows the  warrant.  But  the  judgment  being  against  the  defendant 
alone,  cannot  be  sustained.  The  judgment  must  be  against  all  who 
are  parties  to  the  writ  and  declaration;  and  especially  in  a  case  like 
the  present,  where,  if  the  judgment  were  properly  rendered,  in  the 
event  of  the  death  of  the  husband,  would  survive  against  the  wife, 
but  as  this  judgment  is  rendered  would  survive  against  the  repre- 
sentative of  the  husband. 

Let  the  judgment  be  reversed  and  the  cause  remanded. 


PARKER  r.  COWAN  &  DICKINSON. 
I  Heisk.   (Tenn.)  518. — 1870. 

In  the  Circuit  Court,  before  E.  T.  Hall,  J. 

Nicholson,  C.  J.  Plaintiff  in  error,  whilst  a  /erne  sole,  bought 
goods,  wares  and  merchandise,  of  defendants  in  error  to  the  amount 
of  $1,232.  She  afterwards  married,  and  in  settlement  of  said 
account,  her  husband  and  herself  executed  their  joint  note  to  de- 
fendants in  error,  for  the  amount  of  the  account.  Soon  after  the 
death  of  Wm.  Parker,  her  husband,  the  attorney  of  defendants  in 
error,  called  on  plaintiff  in  error,  and  presented  to  her  the  note  and 
account,  and  requested  payment.  "  She  replied  that  she  could  not 
pay  the  debt  just  then  but  said  it  was  a  just  debt,  and  she  did  not 
intend  that  the  estate  of  her  late  husband,  William  Parker,  should 
pay  any  part  of  the  debt,  as  it  was  her  debt  that  she  made  be- 
fore she  married  him.  She  said  that  she  would  pay  the  claim,  and 
asked  indulgence  for  a  short  time,  which  witness  promised  to  give 
and  did  give." 

Upon  the  failure  to  pay,  suit  was  brought  against  her  in  the  Cir- 
cuit Court  of  Monroe  county.  The  declaration  contained  two 
counts  —  one  on  the  account  and  the  other  on  the  note.  The 
plaintiff  in  error  put  in  the  plea  of  nil  debit,  and  several  special 
pleas,  to  the  effect  that  she  was  not  liable  on  the  account,  because 
it  was  extinguished  by  the  note,' and  not  liable  on  the  note,  because 
she  was  a  feme  covert  when  it  was  executed.  To  these  pleas  there 
were  replications  and  issues  joined. 

The  jury  found  a  verdict  in  favor  of  defendants  in  error  on  the 
second  count  of  the  declaration,  which  was  on  the  note;  and  upon 
the  court  discharging  a  rule  for  a  new  trial,  plaintiff  in  error  appealed 
in  error  to  this  court. 


WIFE  S   ANTE-NUPTIAL    CONTRACTS    WITH    THIRD    PERSON.      8l 

When  the  circuit  judge  came  to  charge  the  jury,  he  was  requested 
by  the  plaintiff  in  error  to  withdraw  from  them  the  evidence  before 
detailed,  as  to  the  promises  by  plaintiff  in  error  to  pay  the  debt  soon, 
and  her  request  for  indulgence.  The  judge  refused  to  withdraw  the 
evidence;  and  his  refusal  to  do  so  is  the  error  now  relied  on  for  a 
reversal  of  the  judgment. 

The  first  question  to  be  decided  is,  what  was  the  legal  effect  of  the 
execution  of  the  note  by  complainant  and  her  husband  on  the 
account  made  by  complainant  before  her  marriage  ?  Was  it  an  abso- 
lute extinguishment  and  satisfaction  of  the  prior  indebtedness  rest- 
ing upon  the  account  ?  In  Chitty  on  Bills,  172,  it  is  said:  "  A  per- 
son, by  taking  a  bill  of  exchange  or  promissory  note,  in  satisfaction 
of  a  former  simple  contract  debt,  or  of  a  simple  contract  debt, 
created  at  the  time,  suspends  his  remedy,  and  is  precluded  from 
afterwards  waiving  it,  and  suing  the  person  who  gave  it  to  him  for 
the  original  debt,  before  the  bill  has  been  dishonored;  for  the  taking 
of  the  bill  \%  prima  facie  a  satisfaction  of  the  debt,  and,  at  least, 
amounts  to  an  agreement  to  give  the  person  delivering  it  credit  for 
the  length  of  time  it  has  to  run."  In  Robinson  v.  £?-anc/i,  3  Snced, 
506,  it  was  held  that  "  the  execution  of  a  note,  under  seal,  '\s p?-ima 
facie  evidence  of  a  settlement  of  all  pre-existing  accounts  between 
the  parties,  and  casts  the  burden  of  proof  upon  the  party  asserting 
otherwise."  It  follows  that  the  execution  of  the  note  by  complain- 
ant and  her  husband  was  not  an  absolute  extinguishment  and  satis- 
facticn  of  the  original  debt.  It  was  a  suspension  of  the  right  to  sue 
on  the  original  debt  until  the  note  was  dishonored;  and  it  ^2^% prima 
facie  evidence  that  the  account  was  settled  and  satisfied. 

The  next  question  is  as  to  the  legal  effect  of  the  execution  of  the 
note  by  complainant,  she  being  at  the  time  a  fetne  covert.  With 
certain  exceptions,  a  married  woman  is  incapable  of  entering  into 
any  contract  so  as  to  bind  herself  personally,  or  of  suing  or  being 
sued  in  her  own  name,  during  her  coverture. 

By  the  execution  of  the  note,  therefore,  she  incurred  no  liability 
to  be  sued.  But  it  does  not  follow  that  the  original  debt  was  thereby 
in  any  way  affected.  By  her  marriage  the  law  suspended  the  right 
of  her  creditor  to  enforce  his  claim  by  suit  against  her;  he  could 
only  enforce  the  claim  by  suit  against  her  husband.  The  giving  of 
the  note  by  the  husband  had  no  other  effect  on  the  original  debt,  as 
we  have  seen,  than  to  suspend  the  right  of  the  defendant  in  error  to 
sue,  except  upon  the  note,  until  payment  thereof  was  refused. 
After  payment  of  the  note  was  refused,  suit  could  be  brought 
against  the  husband  on  either  the  note  or  the  account;  but  during 
the  coverture,  suit  could  be  brought  against  the  wife  alone  uDon 
fDoMESTic  Relations  —  6.1 


82  HUSBAND   AND   WIFE, 

neither  the  note  nor  the  account.  This  was  the  legal  consequence 
of  her  being  a  married  woman.  But  whilst  the  note,  during  the 
coverture,  created  no  obligation  upon  her,  yet  it  cannot  properly  be 
said  to  be  a  contract  void  ab  initio,  as  it  would  have  been  if  given  for 
a  debt  created  during  the  coverture.  Having  been  given  for  a  legal 
liability  existing  before  her  marriage,  the  note  can  only  be  regarded 
as  a  nullity  and  as  having  no  obligatory  force  during  the  coverture, 
and  not  after  she  became  discovert,  unless  so  ratified  as  to  revive 
the  original  liability. 

The  next  question  is,  as  to  the  legal  effect  of  the  promise  made  by 
plaintiff  in  error  after  she  became  discovert.  It  must  be  conceded 
that  she  was  then  under  no  legal  obligation  to  pay  the  note.  As 
the  jury  found  by  their  verdict  that  she  was  liable  on  the  account, 
and  as  we  are  not  called  on  to  determine  whether  that  finding 
was  erroneous  or  not,  we  need  not  express  any  opinion  on  that 
point.  But  as  the  jury  found  that  the  plaintiff  in  error  was  liable 
on  the  note,  and  as  this  finding  was  manifestly  based  upon  the 
evidence  of  her  promise  to  pay,  the  question  is  presented,  was  the 
circuit  judge  in  error  in  refusing  to  exclude  that  evidence  from  the 
jury  ? 

It  is  well  settled  that  "  a  mural  obligation  is  not  alone  sufficient 
legal  consideration  to  support  either  an  express  or  implied  promise." 
I  Story  on  Contr.,  sec.  465.  But  this  general  rule  is  subject  to  this 
exception:  "  A  moral  obligation  to  pay  money  or  to  perform  a  duty 
is  a  good  consideration  for  a  promise  to  do  so,  where  there  was 
originally  an  obligation  to  pay  the  money  or  to  do  the  duty,  which 
was  enforceable  at  law,  but  for  the  interference  of  some  rule  of  law." 
X  Parsons  on  Contr.,  361;   i  Story  on  Contr.,  sec.  466. 

If  plaintiff  in  error  had  been  under  no  previous  liability  to  pay  the 
debt  for  which  the  note  was  given,  her  simple  promise  to  pay  would 
have  created  no  liability,  as  it  would  have  been  a  promise  to  pay  a 
contract  void  ab  initio,  and,  therefore,  not  capable  of  ratification. 
I  Story  on  Contr.,  sec.  468.  But  because  she  was  under  a  legal 
obligation,  before  her  marriage,  to  pay  for  the  goods  purchased, 
when  the  impediment  to  the  enforcement  of  that  obligation,  pro- 
duced by  her  marriage,  was  removed  by  her  becoming  discovert, 
this  previous  legal  liability  constituted  a  sufficient  moral  obligation 
to  support  the  promise  to  pay  the  debt.  When  the  note  and  account 
were  presented  to  her  and  payment  was  requested,  her  promise  to 
pay  the  debt  might  well  be  regarded  by  the  jury  as  virtually  a  re-de- 
livery, as  well  as  a  ratification  of  the  note;  and  being  under  a 
moral  obligation  to  pay,  as  she  freely  acknowledged,  the  verdict  of 
the  jury  was  well  supported  by  the  proof. 


WIFE'S   POST-NUPTIAL   CONTRACTS   WITH    THIRD    PERSON.      83 

There  was,  therefore,  no  error  in  the  refusal  of  the  circuit  judge 
to  exclude  from  the  jury  the  evidence  of  the  promise  by  plaintiff  in 
error  to  pay  the  debt,  and  we  affirm  the  judgment. 


Wifes  Post-nuptial  Contracts  with   Third  Persons. 
FARRAR  z'.  BESSEY. 

24  Vt.   89. —  1852. 

Book  account.  The  action  was  commenced  before  a  justice  of 
the  peace,  and  came  to  the  County  Court  by  appeal.  Judgment  to 
account  was  rendered  in  the  County  Court,  and  an  auditor  was 
appointed,  who  reported  the  facts. 

Upon  these  facts,  the  County  Court  rendered  judgment  for  the 
defendants  upon  the  report.     Exceptions  by  plaintiff. 

RoYCE,  Ch.  J.  This  was  an  action  of  book  account,  brought  to 
recover  a  balance  claimed  to  be  due  from  the  wife.  The  whole  of 
the  plaintiff's  account,  except  one  item  of  fifty  cents,  on  the  debit 
side,  and  two  items  of  credit,  amounting  to  two  dollars  and  fifty 
cents,  accrued  before  the  intermarriage  of  the  defendants.  They 
presented  no  account  before  the  auditor,  but  relied  on  the  statute  of 
limitations.  To  this  defense  two  answers  were  attempted  before 
the  auditor,  but  only  one  of  them  is  now  insisted  on.  This  is  based 
upon  the  fact,  that  the  three  items  referred  to  accrued  within  six 
years  before  the  commencement  of  the  action.  And  these  entries 
are  found  to  have  been  justified  by  real  transactions  between  the 
parties.  But  the  report  shows  that  this  part  of  the  account  accrued 
after  the  defendants  had  intermarried.  When  it  accrued,  the  wife 
was  no  longer  capable  of  contracting  a  debt  against  herself,  nor  was 
she  entitled  to  claim  the  benefit  of  these  credits,  except  as  payments 
made  by  her  husband  upon  her  debt.  In  legal  effect,  this  part  of 
the  account  arose  between  the  plaintiff  and  the  husband  alone;  so 
that  the  account  properly  existing  with  the  wife,  was  not  brought 
down  to  a  time  within  the  six  years.  Gay  et  ux.  v.  Estate  of  Rogers, 
18  Vt.  342.  It  is  found  by  the  auditor,  however,  that  the  services 
of  the  wife,  which  constituted  these  two  items  of  credit,  were,  by 
the  express  consent  of  both  defendants,  received  to  be  applied  in 
part  payment  of  the  previous  account  against  the  wife.  They  must 
have  the  application  which  was  then  intended.  And  the  general 
rule  is,  that  the  admission  of  a  debt  by  part  payment,  is  sufficient  to 
warrant  the  implication  of  a  new  promise  to  pay  the  unsatisfied  bal- 


84  HUSBAND   AND    WIFE. 

ance.      Strong  v.  AfiCoiific-//,  5    \'t.  2>o^\    Joslyn  v.  Sinitli^   13    \'t.  353; 
Munson  v.  Rice  and  Sa/iJcrso/i  v.  Mil  ton  Stage  Co.,  18  \'L  53-107. 

But  to  authorize  the  implication  of  such  new  promise,  from  part 
payment,  or  other  acknowledgment  of  a  debt,  the  party  whose 
promise  is  implied  must  be  legally  capable  of  making  a  valid  and 
binding  express  promise.  And  as  a  y"<!';//t' r^rr/ cannot  make  such  a 
promise  in  her  own  right,  especially  while  living  with  her  husband, 
it  follows  that  no  effectual  promise  of  the  wife  can  be  implied  in  the 
present  case,  from  the  fact  of  this  part  payment  of  her  debt.  This 
is  a  legitimate  and  obvious  conclusion,  from  the  doctrine  held  in 
Pittam  V.  Foster  ct  al.,  8  C.  L.  R.  67.  And  we  think  it  must,  from 
the  decision  of  this  court  in  Powers  v.  Soiithgate  and  IVife^  15  Vt. 
471,  that  no  promise  of  the  husband,  which  could  affect  the  rights 
of  his  wife,  under  the  statute  of  limitations,  was  to  be  implied  from 
the  payment  made  by  him.  The  cause  of  action  against  the  wife, 
was  therefore  barred;  and  the  present  suit,  founded  on  the  assump- 
tion of  her  continuing  liability,  could  not  be  sustained.  The  judg- 
ment of  the  County  Court  is  accordingly  affirmed. 


SHEPPARD  V.  KINDLE. 

3  Humph.   (Tenn.)  80. —  1842. 

Green,  J.  The  declaration  in  this  case  sets  out  as  the  cause  of 
action,  that  Nicy  B.  Sheppard,  then  and  still  being  the  wife  of 
George  P.  Sheppard,  on  the  9th  of  August,  1838  (together  with 
Allen  B.  Lane  and  B.  Edmundson  who  are  not  sued),  made  her  prom- 
issory note,  payable  ninety  days  after  date,  by  which  she  promised 
to  pay  the  plaintiff  three  hundred  dollars.  In  the  court  below,  the 
plea  was  withdrawn  and  a  judgment  was  taken  nil  dicit,  and  a  motion 
in  arrest  of  judgment  made  and  overruled. 

It  is  not  insisted  here  that  the  note  executed  by  Nicy  B.  Shep- 
pard, a  feme  eovert,  created  any  legal  obligation  on  her,  or  her  hus- 
band George  P.  Sheppard;  but  it  is  said  her  coverture  should  have 
been  pleaded  in  abatement.  When  a. feme  rt^z'^r/ executes  an  obligation, 
and  afterwards  marries  and  is  sued  alone,  the  plea  in  abatement, 
because  the  husband  is  not  joined,  is  the  proper  defense.  In  that 
case,  the  defense  does  not  go  to  the  cause  of  action,  but  the  form  in 
which  it  is  brought.  But  in  the  present  case,  there  is  no  sufficient 
cause  of  action.  The  note  executed  by  the  feme  covert  creates  no 
right  of  action  against  her,  or  her  husband.  Consequently,  if  the 
facts  had  not  appeared  in  the  declaration,  a  plea  in  bar  would  have 


•wife's  post-nuptial  contracts  with  third  person.    85 

been  the  proper  defense.  But  the  declaration  sets  out  the  facts 
which  show  there  is  no  cause  of  action,  and  consequently  it  is  bad 
upon  general  demurrer,  or  may  be  taken  advantage  of  by  motion  in 
arrest  of  judgment.  We  think,  therefore,  the  judgment  should  have 
been  arrested,  and  the  Circuit  Court  refusing  to  do  so,  the  judgment 
must  be  reversed. 


FOSTER  V.  WILCOX. 

10  R.  I.  443.— 1873. 

Action  of  covenant  to  recover  damages  for  a  breach  of  covenant 
of  quiet  enjoyment  given  by  the  defendants'  ancestor. 

DuRFEE,  J.  This  is  an  action  to  recover  damages  for  the  breach 
of  a  covenant  of  quiet  enjoyment  contained  in  a  lease  to  the  plaintiff, 
executed  May  26,  1840,  by  Horace  A.  Wilcox  and  Sally  B.  Wilcox, 
his  wife.  The  plaintiff  was  evicted  from  a  portion  of  the  demised 
premises  by  the  holders  of  the  rightful  title,  in  August,  186 1,  during 
the  continuance  of  the  lease,  and  in  the  lifetime  of  the  lessors.  The 
action  is  prosecuted  against  the  defendants  as  the  heirs-at-law  and 
devisees  of  the  said  Sally  B.  Wilcox.  The  case  is  tried  to  the  court, 
trial  by  jury  having  been  waived. 

The  first  question  presented  is  whether  the  action  can  be  main- 
tained,—  the  objection  to  its  maintenance  being  that  the  covenant 
of  a  married  woman  does  not  bind  her,  and  consequently  cannot 
bind  her  heirs  or  devisees.  The  plaintiff's  counsel  admits  that  the 
action  would  not  lie  against  Sally  B.  Wilcox,  if  she  were  alive,  but 
contends,  nevertheless,  that  the  covenant  is  not  so  wholly  void  that 
an  action  cannot  be  maintained  for  a  breach  thereof  against  her  heirs 
and  devisees.  The  argument  seems  to  imply  or  assume  that  the 
obstacle  to  the  enforcement  of  the  contracts  of  a  married  woman  is 
not  her  inability  to  contract  but  her  immunity  from  suit.  If  this 
were  so,  however,  her  exemption  would  continue  only  during  her 
coverture.  Her  exemption  is  much  more  absolute.  The  strongest 
cases  against  her  subject  her  to  liability  only  in  case  of  a  new  provi- 
sion made  after  she  has  become  discovert;  Let;  v.  Muggeridge, 
5  Taunt.  35;  Franklin  v.  Beatty,  27  Miss.  347;  while  a  still  more 
authoritative  current  of  decision  is  to  the  effect  that  her  contract 
made  during  coverture  is  not  affirmable  even  by  a  new  provision 
after  she  becomes  discovert,  without  a  consideration;  Lloyd  v.  Lee. 
I  Str.  94;  Meyer  v.  Llmvarth^  8  Ad.  &  El.  467;  Wennall  v.  Adney, 
3  B.  &  P.  247,  note;  Watkins  v.  Halstead,  2  Sandf.  311;  Littlefield  v. 
Shee,  2  B.  &  Ad.  811 ;   unless,  aL  least,  the  consideration  of  the  original 


86  HUSBAND    AND    WIFE. 

contract  was  a  benefit  personally  received  by  her.  Goulding  v, 
Davidson^  26  N.  V.  604. 

The  plaintiff's  counsel  refers  to  cases  which  hold  that  a  widow  is 
bound  by  the  covenants  contained  in  a  lease  of  her  lands,  executed 
by  her  and  her  husband  during  his  life,  but  not  in  a  way  to  bind  her, 
in  case  she  accepts  the  rent  after  his  death.  See  IVotion  v.  Hele, 
3  Saund.  (Wms.  ed.),  180.  But  these  cases,  in  so  far  as  they  are 
authoritative,  do  not  appear  to  hold  that  the  covenants  have  any 
validity  against  her  previous  to  her  acceptance  of  the  rent;  but  only 
that  by  accepting  the  rent  she  affirms  the  lease  and  her  covenants 
therein,  and  thus  gives  them  validity.  Worthington' s  Lessee  v. 
Young,  6  Ohio,  313,  335.  In  the  case  at  bar,  it  is  doubtful  if  an 
acceptance  of  the  rent  could  be  construed  to  have  any  such  effect; 
for,  aside  from  the  covenants,  the  lease  is  valid  without  any  affirma- 
tion. But  if  it  be  otherwise,  there  has  been  no  acceptance  of  any 
rent,  since  the  death  of  Horace  A.  Wilcox,  for  that  portion  of  the 
demised  premises  from  which  the  plaintiff  has  been  evicted;  and 
certainly  if  an  affirmation  is  to  be  implied  from  an  acceptance  of 
rent,  it  can  be  implied  only  to  the  extent  to  which  the  rent  has  been 
accepted. 

The  plaintiff's  counsel  refers  to  the  cases  of  Nash  v.  Spofford, 
lo  Met.  192,  and  Hil/'s  Lessee  \.  West,  8  Ohio,  226,  which  hold  that 
a  covenant  of  warranty  in  the  deed  of  a  married  woman  is  operative 
against  her  by  way  of  estoppel.  But  the  courts  which  allow  the 
covenant  this  negative  efficacy  do  not  allow  it  any  other  effect; 
Fcnvler  v.  Shearer,  7  Mass.  14;  Colcord  \ .  Swan,  7  Mass.  291;  Wad- 
leigh  V.  Sutton,  6  N.  H.  17;  and  there  are  cases  which  hold  that  the 
covenant  is  not  operative  even  by  way  of  estoppel  to  transfer  an 
after-acquired  title,  y^ackson  v.  Vattderheyden,  17  Johns.  167;  Den 
V.  Demarest  i  Zab.  525,  541.  And  see  Wight  v.  Shaw,  5  Cush. 
56,  66. 

Judgment  must  be  given  for  the  defendants  for  their  costs. 


GREGORY  V.  PIERCE. 
4  Met.   (Mass.)  478. —  1842. 

Assumpsit  on  a  promissory  note,  signed  by  the  defendant  in  the 
presence  of  an  attesting  witness,  dated  October  6th,  1825,  and  pay- 
able to  Putnam  &  Gregory,  partners,  of  whom  the  plaintiff  is  survivor. 

"  The  defendant  was  married  to  Varney  Pierce,  Jr.,  in  1806,  who, 
in  1 81 6,  became  insolvent,  and   left  her  and  went  out  of  the   com- 


WIFE'S   POST-NUPTIAL   CONTRACTS   WITH    THIRD    PERSON,      8/ 

monwealth,  and  did  not  return  till  i8iS,  when  he  came  back  and 
remained  with  her  about  a  week.  He  then  left  her  and  went  to 
Ohio,  where  he  remained  till  his  death  in  1832.  He  made  no  provi- 
sion for  the  support  of  his  wife  and  family,  after  he  left  her  in 
1816;  but  she  supported  herself  and  family,  after  he  left  her,  by  her 
own  labor,  contracting  debts  and  making  contracts  in  her  own  name. 
Putnam  &  Gregory  employed  her  to  do  work  for  them,  and  supplied 
her  with  necessaries  for  the  support  of  herself  and  family;  and  the 
note  in  suit  was  given  for  the  balance  of  account  between  the 
parties." 

Judgment  for  the  plaintiff,  and  the  defendant  appealed. 

Shaw,  C.  J.  The  principle  is  now  to  be  considered  as  estab- 
lished in  this  State,  as  a  necessary  exception  to  the  rule  of  the  com- 
mon law,  placing  a  married  woman  under  disability  to  contract  or 
maintain  a  suit,  that  where  the  husband  was  never  within  the  com- 
monwealth, or  has  gone  beyond  its  jurisdiction,  has  wholly  renounced 
his  marital  rights  and  duties,  and  deserted  his  wife,  she  may  make 
and  take  contracts,  and  sue  and  be  sued  in  her  own  name,  as  a  feme 
sole.  It  is  an  application  of  an  old  rule  of  the  common  law,  which 
took  away  the  disability  of  coverture  when  the  husband  was  exiled 
or  had  abjured  the  realm.  Gregory  v.  Paul.,  15  Mass.  31;  Abbot  v. 
Bayley,  6  Pick.  89.  In  the  latter  case,  it  was  held,  that  in  this 
respect,  the  residence  of  the  husband  in  another  State  of  these 
United  States  was  equivalent  to  a  residence  in  any  foreign  State; 
he  being  equally  beyond  the  operation  of  the  laws  of  the  common- 
wealth, and  the  jurisdiction  of  its  courts. 

But  to  accomplish  this  change  in  the  civil  relations  of  the  wife, 
the  desertion  by  the  husband  must  be  absolute  and  complete;  it 
must  be  a  voluntary  separation  from  and  abandonment  of  the  wife 
embracing  both  the  fact  and  intent  of  the  husband  to  renounce 
de  facto.,  and  as  far  as  he  can  do  it,  the  marital  relation,  and  leave  his 
wife  to  act  2A  feme  sole.  Such  is  the  renunciation,  coupled  with  a 
continued  absence  in  a  foreign  State  or  country,  which  is  held  to 
operate  like  an  abjuration  of  the  realm. 

In  the  present  case,  the  court  are  of  opinion,  that  the  circum- 
stances stated  are  not  sufficient  to  enable  the  court  to  determine 
whether  the  husband  had  so  deserted  his  wife,  when  the  note  in 
question  was  given.  The  only  facts  stated  are,  that  he  was  insol- 
vent when  he  went  away;  that  he  was  absent,  residing  seven  or  eight 
years  in  Ohio;  that  he  made  no  provision  for  his  wife  and  her  family, 
after  1816;  and  that  she  supported  herself  and  them  by  her  own 
labor.  But  it  does  not  appear  that  he  was  of  ability  to  provide  for 
her;  that  he  was  not  in  correspondence  with  her;  that  he  declared 


63  HUSBAND   AND    Will-:. 

any  intention  to  desert  her  when  he  left,  or  manifested  any  such 
intention  afterwards;  or  that  he  was  not  necessarily  detained  by 
sickness,  imprisonment  or  poverty. 

The  fact  of  desertion  by  a  husband  may  be  proved  by  a  great 
variety  of  circumstances  leading  with  more  or  less  probability  to 
that  conclusion;  as,  for  instance,  leaving  his  wife,  with  a  declared 
intention  never  to  return;  marrying  another  woman  or  otherwise 
living  in  adultery,  abroad;  absence  for  a  long  time,  not  being  neces- 
sarily detained  by  his  occupation  or  business,  or  otherwise;  making 
no  provision  for  his  wife,  or  wife  and  family,  being  of  ability  to  do 
so;  providing  no  dwelling  or  home  for  her,  or  prohibiting  her  from 
following  him;  and  many  other  circumstances  tending  to  prove  the 
absolute  desertion  before  described.  The  general  rule  being  that  a 
married  woman  cannot  make  a  contract  or  be  sued,  the  burden  of 
proof  is  upon  the  plaintiff  to  show  that  she  is  within  the  exception. 
In  an  agreed  statement  of  facts,  such  fact  of  desertion,  using  this 
term  in  the  technical  sense  above  expressed,  as  a  total  renunciation 
of  the  marriage  relation,  must  be  agreed  to,  or  such  other  facts 
must  be  agreed  to  as  to  render  the  conclusion  inevitable.  If  the 
facts  stated  are  all  that  can  be  proved  in  the  case,  the  court  would 
consider  that  the  plaintiff  had  not  sustained  the  burden  of  proof, 
and,  therefore^  could  not  have  judgment.  See  Williamson  v.  Dawes, 
9  Bing.  292  ;  Stretton  v.  Bushnach,  4  Moore  &  Scott,  678;  S.  C,  i  Bing. 
N.  R.  139;  Bean  v.  Morgan,  4  McCord,  148.  But  apprehending 
that  the  statement  may  have  been  agreed  to,  under  a  misapprehen- 
sion of  the  legal  effect  of  the  facts  stated,  and  that  other  evidence 
may  exist,  the  court  are  of  opinion,  and  do  order,  that  the  agreed 
statement  of  facts  be  discharged,  and  a  trial  had  at  the  bar  of  the 
Court  of  Common  Pleas. 


Wifes  Contracts  for  Necessaries* 

GAFFORD   V.  DUNHAM. 

II I  Ala.  551.  —  1896. 

Coleman,  J.  F.  W.  Dunham  sued  the  appellant,  F.  H.  Gafford, 
and  his  wife,  M.  B.  Gafford,  upon  an  account  for  groceries  and  sup- 
plies alleged  to  have  been  sold  by  one  Boggan,  the  assignor  of  plain- 
tiff. The  uncontroverted  evidence  shows  that  the  articles  were  sold 
to,  and  upon  the  sole  credit  of,  M.  B.  Gafford.  The  contract  for 
their  purchase  was  made  for  her  only,  and  all  payments  which  had 


wife's  contracts  for  necessarihs.  89 

been  credited  upon  the  account  were  made  by  her.  The  articles 
were  charged  to  her,  and  the  name  of  F.  H.  Gafford  nowhere 
appears  upon  the  books  of  account,  nor  is  it  pretended  that  at  any 
time  was  he  regarded  as  the  debtor.  After  hearing  the  evidence, 
the  court,  without  the  intervention  of  a  jury,  rendered  judgment  in 
favor  of  M.  B.  Gafford,  and  against  the  husband,  F.  H.  Gafford, 
who  prosecutes  the  present  appeal.  At  the  trial,  the  wife  interposed 
the  plea  of  coverture,  and  the  failure  of  the  husband  to  give  his 
assent  in  writing  to  the  contract.  This  plea  was  fully  sustained  by 
the  evidence.  We  presume  the  court  rendered  judgment  against  the 
husband,  upon  the  ground  that  as  the  contract  made  with  the  wife 
was  void,  and  as  the  evidence  showed  that  the  articles  purchased 
were  necessaries  of  life,  and  suitable  to  the  degree  and  station  in  life 
of  the  wife  of  F.  H.  Gafford,  his  common-law  liability  arose,  and  he 
was  chargeable  for  such  necessaries  furnished  to  her.  Considered 
with  reference  to  the  evidence  as  to  the  furnishing  of  the  articles  to 
the  wife,  or  as  to  the  common  law  liability  of  the  husband  for 
necessaries  furnished  to  the  wife,  the  conclusion  of  the  court 
was  erroneous.  The  common  law  liability  of  the  husband  for 
necessaries  and  suitable  comforts  has  always  rested  upon  the 
assumption  that  credit  was  given  to  the  husband,  and  not  to  the 
wife,  and  that  the  purchase  was  made  with  his  implied  assent. 
In  no  case  did  this  liability  arise  when  the  facts  showed  affirma- 
tively that  credit  was  given  to  the  wife,  and  charged  to  her,  and  not 
to  the  husband,  and  the  goods  were  sold  not  upon  his  implied 
assent  that  they  were  to  be  charged  to  him.  Hughes  v.  Chadwick, 
6  Ala.  651;  Pearson  v.  Dcirrington.,  32  Ala.  231;  O'Connor  v.  Cham- 
berlain, 59  Ala.  431 ;   Gayle  v.  Marshall,  70  Ala.  522.      ♦ 

The  judgment  is  reversed,  and  a  judgment  will  be  here  rendered 
in  favor  of  the  appellant.      Reversed  and  rendered. 


VUSLER  V.  COX. 


53  N.   J.   Law,   516.— 1891. 

On  certiorari  Vo  Warren  Pleas  to  review  a  judgment  of  that  court 
upon  the  trial  of  an  appeal  from  a  Justice's  Court. 

This  suit  was  brought  by  Dr.  Henry  M.  Cox,  a  physician,  against  the 
executors  of  George  Vusler,  deceased,  to  recover  a  bill  for  medical 
services  rendered  to  the  testator's  wife  between  March  27th,  1883,  and 
October  2d,   of  the  same  year.     The  testator  died  in   May,    1886. 


90  HUSBAND    AM)    WIFE, 

The  court  certified  that  prior  to  May,  1880,  the  testator  and  his 
wife  lived  together  for  five  or  six  years;  that  on  or  about  the  5th  day 
of  May  the  testator's  wife,  in  his  absence,  moved  away  from  his 
house  and  left  him,  and  went  to  her  brother's  house,  a  few  miles 
away;  that  she  removed  from  her  husband's  house  everything  that 
belonged  to  her;  that  when  she  took  away  the  last  load  of  goods  she 
told  her  husband  that  she  was  going  to  leave  and  was  not  coming 
back  again;  that  the  testator,  after  his  wife  left,  lived  with  his  sons 
until  his  death;  that  his  wife  never  returned  to  him,  but  continued 
to  reside  at  her  brother's  house,  and  that  it  was  during  her  illness 
at  her  brother's  house  that  the  plaintiff  rendered  the  professional 
services  sued  for. 

The  court  further  certified  that  it  did  not  appear  that  the  wife  had 
any  reason  for  leaving  her  husband,  and  that  it  did  not  appear  that 
the  plaintiff  had  any  knowledge  that  the  testator's  wife  was  not  liv- 
ing with  him  —  the  doctor  denying  that  he  knew  anything  about  it. 

Depue,  J.  It  may  be  inferred  from  the  case  certified,  and  will  be 
assumed,  that  the  plaintiff  rendered  these  services  to  the  testator's 
wife  without  knowledge  that  she  was  living  in  a  state  of  separation 
from  her  husband. 

The  liability  of  a  husband  on  a  contract  made  by  the  wife  is 
usually  ascribed  to  those  principles  which  are  applicable  to  the  rela- 
tion of  principal  and  agent. 

Where  husband  and  wife  are  living  together,  the  wife  has  implied 
authority  to  pledge  her  husband's  credit  for  such  things  as  fall  within 
the  domestic  department  ordinarily  confided  to  her  management, 
and  for  articles  furnished  to  her  for  her  personal  use  suitable  to  the 
style  in  which  the  husband  chooses  to  live.  Under  such  circum- 
stances the  presumption  is  in  favor  of  the  wife's  authority  to  con- 
tract on  behalf  of  her  husband.  i  Ev.  Pr.  &  A.  166;  Wilson  v. 
Herbert,  12  Vroom.  454;  yol/y  v.  Jiees,  15  C.  B.  N.  S.  628;  Notes  to 
Manhy\.  Scott,  3  Sm.  Lead.  Cas.  (9th  ed.),  1757. 

But  where  the  husband  and  wife  are  living  in  a  state  of  separation, 
the  presumption  is  against  the  authority  of  the  wife  to  bind  the  hus- 
band by  her  contract.  Under  such  circumstances  the  general  rule 
is  that  the  husband  is  not  liable.  To  this  rule  there  are  two  excep- 
tions pertinent  to  this  inquiry,  the  first  of  which  is  where  husband 
and  wife  separate  and  live  in  a  state  of  separation  by  mutual  consent, 
without  any  provision  for  her  maintenance  or  means  of  her  own  for 
her  support;  the  other,  where  the  wife  leaves  her  husband  under  the 
stress  of  his  misconduct  of  such  a  character  as  in  law  is  regarded  as 
a  justifiable  cause  for  the  wife's  quitting  her  husband's  society.     In 


WIFE'S   CONTRACTS   FOR   NECESSARIES.  9I 

such  cases,  the  presumption  being  against  the  liability  of  the  hus- 
band for  the  wife's  contract,  the  burden  of  proof  is  upon  the  party 
seeking  to  enforce  against  him  a  liability  for  her  contract.  He 
must  show  affirmatively  the  special  circumstances  which  shall  fix  the 
responsibility  on  the  husband  in  order  to  establish  his  cause  of 
action.  Mainwaring  v.  Leslie^  i  Moo.  &  M.  18;  Johnston  v.  Sumner, 
3  Hurlst.  &  N.  261,  268;  Blowers  v.  Sturtevant,  4  Den.  46;  Breinig  v. 
Meitzler,  23  Penna.  St.  156;  Snover  w  Blair,  1  Dutcher,  94;  2  Kent, 
147.  The  cases,  English  and  American,  on  this  subject,  are  collected 
in  the  American  editions  of  Smith's  Leading  Cases  under  the  head  of 
Man  by  v.  Scott. 

The  certificate  of  the  Court  of  Common  Pleas  states  that  it  did  not 
appear  that  the  wife  had  any  reason  for  leaving  her  husband,  and 
the  facts  set  out  in  the  certificate  tend  to  show  that  she  left  him  of  her 
own  volition,  and  without  any  justifiable  cause. 

Nor  will  the  fact  that  the  plaintiff  had  no  knowledge  that  the  wife 
was  living  separate  from  her  husband  avail  to  relieve  the  plaintiff 
from  the  burden  of  proof.  Independently  of  agency,  express  or  im- 
plied from  cohabitation,  the  liability  of  the  husband  upon  contracts 
made  by  the  wife  pledging  his  credit  arises  from  the  acts  or  miscon- 
duct of  the  husband.  As  was  said  by  Lord  Selborne,  there  is  no 
mandate  in  law  from  the  fact  of  marriage  only,  making  the  wife  the 
agent  in  law  of  her  husband  to  bind  him  and  pledge  his  credit, 
except  in  the  particular  case  of  necessity  —  a  necessity  which  may 
arise  where  the  husband  has  deserted  the  wife,  or  has  by  his  conduct 
compelled  her  to  live  apart  from  him.  Debenham  v.  Mellon,  6  App. 
Cas.  24,  31.  On  any  other  hypothesis  a  wife  living  separate  from 
her  husband  without  justifiable  cause,  or  even  through  her  own  mis- 
conduct, would  have  it  in  her  power  to  pledge  his  credit  by  seeking 
persons  with  whom  to  deal  who  were  unaware  of  the  family  relations. 

There  being  no  proof  of  facts  from  which  agency  might  be  im- 
plied, and  from  the  fact  that  the  wife  was  living  apart  from  her  hus- 
band, the  presumption  being  that  she  had  no  authority  to  bind  the 
husband,  the  plaintiff  could  make  no  case  against  the  husband 
except  on  proof  of  those  particular  circumstances  from  which  the 
husband's  liability  would  result  as  a  mandate  in  law.  To  make  out 
a  cause  of  action  against  the  husband,  the  plaintiff  was  bound  to 
prove  those  special  circumstances  from  which  alone  the  husband's 
liability  for  the  plaintiff's  demands  would  result.  Without  such 
proof  he  had  no  case. 

Upon  the  case  as  certified  the  Court  of  Common  Pleas  gave  judg- 
ment for  the  plaintiff.  That  judgment  was  erroneous,  and  should  be 
reversed. 

'  Semble,  accord  Constable  v.  Rosener,  82  App.  Div.  155  (afBrmed  on  opinion  of 
the  App.  Div.,  178  N.  Y.  587). 


92  HUSBAND    AM)    WIFE. 

BERGH  7:  WARNER. 
47  Minn.  250.  —  1891. 

Mitchell,  J.  It  is  sought  in  this  action  to  hoki  the  defendant 
liable  for  debts  contracted  by  his  wife  during  coverture  and  cohabita- 
tion. The  first  cause  of  action  is  for  the  price  of  a  pair  of  diamond 
ear-rings,  purchased  by  the  wife  for  lier  own  use;  the  second  is  for  a 
small  sum  for  repairing  certain  articles  of  her  jewelry.  The  wife 
has,  by  virtue  of  the  marriage  relation  alone,  no  authority  to  bind 
her  husband  by  contracts  of  a  general  nature.  She  may,  however, 
be  his  agent,  and,  as  such,  bind  him.  This  agency  is  frequently 
spoken  of  as  being  of  two  kinds  —Firsts  that  which  the  law  creates 
as  the  result  of  the  marriage  relation,  by  virtue  of  which  the  wife  is 
authorized  to  pledge  the  husband's  credit  for  the  purpose  of  obtain- 
ing those  necessaries  which  the  husband  himself  has  neglected  or 
refused  to  furnish;  second,  that  which  arises  from  the  authority  of 
the  husband,  expressly  or  implied  conferred,  as  in  other  cases.  The 
first  of  these,  sometimes  called  an  "agency  in  law,"  or  an  "agency 
of  necessity,"  is  not,  accurately  speaking,  referable  to  the  law  of 
agency;  for  the  liability  of  the  husband  in  such  cases  is  not  at  all 
dependent  upon  any  authority  conferred  by  him.  He  would,  under 
such  circumstances,  be  liable  although  the  necessaries  were  furnished 
to  the  wife  against  his  express  orders.  The  real  foundation  of  the 
husband's  liability  in  such  cases  is  the  clear  legal  duty  of  every  hus- 
band to  support  his  wife,  and  supply  her  with  necessaries  suitable  to 
her  situation  and  his  own  circumstances  and  condition  in  life.  But 
the  wife's  authority  on  this  ground  to  contract  debts  on  the  credit  of 
her  husband  is  limited  in  its  extent  and  nature  to  the  legal  require- 
ments fixed  for  its  creation,  of  the  existence  of  which  those  persons 
who  assume  to  deal  with  the  wife  must  take  notice  at  their  peril.  If 
they  attempt  to  hold  the  husband  liable  on  this  ground,  the  burden 
of  proof  is  upon  them  to  show  —  First,  that  the  husband  refused  or 
neglected  to  provide  a  suitable  support  for  his  wife;  d.'sx^,  second,  that 
the  articles  furnished  were  necessaries.  The  term  "  necessaries,"  in 
its  legal  sense,  as  applied  to  a  wife,  is  not  confined  to  articles  of 
food  and  clothing  required  to  sustain  life  or  preserve  decency,  but 
includes  such  articles  of  utility,  or  even  ornament,  as  are  suitable  to 
maintain  the  wife  according  to  the  estate  and  rank  of  her  husband. 

In  regard  to  the  much  vexed  question  as  to  how  it  is  to  be  deter- 
mined, in  a  given  case,  whether  the  articles  furnished  were  neces- 
saries, the  general  rule  adopted  is  that  laid  down  by  Chief  Justice 
SH.A.W  in  Davis  v.  Caldwell,  12  Cush.  512,  viz.,  that  it  is  a  question  of 


wife's  contf^acts  for  necessaries.  93 

fact  for  the  jury,  unless  in  a  very  clear  case,  where  the  court  would 
be  justified  in  directing  authoritatively  that  the  articles  cannot  be 
necessaries.  In  this  case  the  plaintiff  utterly  failed  to  establish  a 
right  to  recover  for  the  articles  sued  for  in  the  first  cause  of  action 
as  "necessaries."  Conceding,  for  the  sake  of  argument,  that,  in 
view  of  the  estate  and  rank  of  the  defendant,  the  trial  judge  would 
have  been  justified  in  finding  as  a  fact  that  diamond  ear-rings  were 
necessaries;  yet,  so  far  from  there  being  any  evidence  that  the  de- 
fendant neglected  or  refused  to  provide  his  wife  a  suitable  support, 
it  affirmatively  appeared  that  he  provided  for  her  amply,  and  even 
liberally. 

The  only  other  ground  upon  which  the  defendant  could  be  held 
liable  was  by  proof  that  he  expressly  or  impliedly  authorized  his  wife 
to  purchase  the  articles  on  his  credit.  This  is  purely  and  simply  a 
question  of  agency,  which  rests  upon  the  same  considerations  which 
control  the  creation  and  existence  of  the  relation  of  principal  and 
agent  between  other  persons.  The  ordinary  rules  as  to  actual  and 
ostensible  agency  must  be  applied.  The  agency  of  the  wife,  if  it 
exists,  must  be  by  virtue  of  the  authorization  of  the  husband,  and 
this  may,  as  in  other  cases,  be  express  or  implied.  Her  authority, 
however,  when  implied,  is  to  be  implied  from  acts  and  conduct,  and 
not  from  her  position  as  wife  alone.  Of  course,  the  husband,  as 
well  as  every  principal,  is  concluded  from  denying  that  the  agent 
had  such  authority  as  he  was  held  out  by  his  principal  to  have,  in 
such  a  manner  as  to  raise  a  belief  in  such  authority,  acted  on  in 
making  the  contract  sought  to  be  enforced.  Such  liability  is  not 
founded  on  any  rights  peculiar  to  the  conjugal  relation,  but  on  other 
grounds  of  universal  application.  By  having,  without  objection, 
permitted  his  wife  to  contract  other  bills  of  a  similar  nature  on  his 
credit,  or  by  payment  of  such  bills  previously  incurred,  and  thus 
impliedly  recognizing  her  authority  to  contract  them,  a  husband 
may  have  clothed  his  wife  with  an  ostensible  agency  and  apparent 
authority  to  contract  the  bill  sued  on,  so  as  to  render  him  liable, 
although  she  had  no  actual  authority,  just  as  any  principal  would  be 
liable  under  like  circumstances.  It  is  also  true  that  where  the  wife 
is  living  with  her  husband,  she,  as  the  head  and  manager  of  his 
household,  is  presumed  to  have  authority  from  him  to  order  on  his 
credit  such  goods  or  services  as,  in  the  ordinary  arrangement  of  her 
husband's  household,  are  required  for  family  use.  Flynn  v.  Messenger^ 
28  Minn.  208,  9  N.  W.  Rep.  759;  Wagner  v.  Nagel,  2tZ  Minn.  348,  23 
N.  W.  Rep.  308.  This  presumption  is  founded  upon  the  well-known 
fact  that,  in  modern  society,  almost  universally,  the  wife,  as,  t!ie 
manager  of  the  household   is  clothed  with  authority  thus  to  pledge 


94  IIUSHAXD    AND    WIFE. 

her  husband's  credit  for  articles  of  ordinary  household  use.  But  the 
articles  sued  for  here  are  not  of  that  character,  and  no  such  pre- 
sumption would  arise  from  the  mere  fact  that  the  parties  were  living 
together  as  husband  and  wife.  To  hold  the  husband  liable  there 
must  have  been  some  affirmative  proof  of  authority  from  him,  either 
express,  or  implied  from  his  acts  and  conduct.  In  this  case  there  is 
an  entire  absence  of  any  evidence  of  express  authority.  Indeed,  the 
evidence  tends  quite  strongly  to  show  that  it  was  his  expressed  wish 
that  his  wife  would  incur  no  bills,  and  that  his  monthly  allowance  to 
her  of  "pin-money"  was  intended  to  avoid  any  occasion  for  her 
doing  so.  The  evidence  of  acts  and  conduct  on  part  of  defendant 
tending  to  show  that  he  had  clothed  his  wife  with  apparent  or 
ostensible  authority  to  buy  any  such  articles  on  his  credit  was 
exceedingly  slight.  The  mere  fact  that  he  furnished  his  wife  with 
expensive  wearing  apparel  had  little,  if  any,  tendency  to  prove  any 
s'lch  fact.  The  same  may  be  said  of  the  evidence  that  on  one 
occasion  he  paid  a  dressmaker's  bill  of  $136,  contracted  by  his  wife, 
especially  as  there  is  no  evidence  that  plaintiff  had  any  knowledge 
of  that  fact.  As  to  previous  dealings  between  the  parties,  the  only 
evidence  is  that  on  various  occasions  plaintiff  had  sold  the  wife 
articles  of  jewelry  for  cash,  but  on  one  occasion,  nearly  three  years 
before,  he  had  sold  her  on  credit  a  bill  of  jewelry  amounting  to 
some  $19,  the  principal  item  of  which  was  a  pair  of  opera  glasses  of 
the  value  of  $12,  and  that  this  bill  was  charged  on  plaintiff's  books 
to  the  wife,  but  that  the  husband,  about  a  year  afterwards,  paid  it. 
We  do  not  think  that  the  evidence  was  such  as  to  require  a  finding 
that  the  wife  had  authority  to  purchase  the  articles  on  the  credit  of 
the  defendant. 

The  other  assignments  of  error,  affecting  the  first  cause  of  action, 
are  not  of  sufficient  importance  to  require  further  mention  than  to 
say  that  we  think  they  are  without  merit. 

Upon  the  trial  the  defendant's  counsel  stated  in  open  court  that 
"defendant  admits  the  items  in  the  bill  for  repairs  [the  second 
cause  of  action],  but  disclaims  any  liability  for  the  diamond  ear- 
rings." This  must  be  construed  as  an  admission  of  the  second 
cause  of  action.  The  trial  court  found  against  plaintiff  on  both 
causes  of  action.  This  was,  of  course,  error.  Doubtless,  it  was  an 
oversight,  which  resulted  from  the  court  not  having  in  mind  the 
admission  made  on  the  trial.  The  mistake  was  one  which  doubtless 
would  have  been  prevented  or  corrected  without  the  necessity  of  an 
appeal  to  this  court,  merely  by  plaintiff's  counsel  calling  the  court's 
attention  to  the  matter.  Under  these  circumstances,  the  amount 
being  only  $6.50,  we  do  not   think  the  appellant  ought  to  recover 


wife's  contracts  for  necessaries.  95 

statutory  costs.  The  order  appealed  from  is  affirmed  as  to  the  first 
cause  of  action,  and  reversed  as  to  the  second,  but  without  costs  to 
either  party. 


WANAMAKER  v.  WEAVER. 

176  N.  Y.  75.  —  1903. 

Haight,  J.  This  action  was  brought  to  recover  the  purchase  price 
of  goods  sold  by  the  plaintiff- to  the  defendant's  wife,  in  the  city  of 
Philadelphia,  without  the  defendant's  knowledge  or  consent.  The 
defendant  and  his  wife  resided  in  the  city  of  Rochester,  and  at  the 
time  the  goods  were  purchased  lived  together  as  husband  and  wife. 
It  was  claimed  on  behalf  of  the  defendant  that,  while  the  goods 
might  ordinarily  be  deemed  necessaries,  they  were  not  in  fact  such, 
for  the  reason  that  the  defendant  lived  on  a  salary  of  $2,000  per 
year,  out  of  which  he  delivered  to  his  wife  $1,500  in  monthly  install- 
ments of  $125  with  which  to  supply  his  table  and  purchase  her  neces- 
sary wearing  apparel;  and  at  the  time  she  purchased  the  goods  in 
Philadelphia  she  was  amply  supplied  with  articles  of  a  similar  char- 
acter, and  was  not  in  need  of  the  articles  purchased.  Upon  the  trial 
the  defendant  sought  to  show  the  character  and  the  amount  of  cloth- 
ing possessed  by  the  defendant's  wife  at  the  time  she  made  the  pur- 
chase of  the  plaintiff  in  Philadelphia.  This  was  objected  to.  The 
objection  was  overruled,  and  an  exception  was  taken.  The  court, 
in  discussing  the  question,  stated  the  law  to  be  as  follows:  "That 
if  a  married  woman  goes  to  a  merchant,  and  within  reasonable  limi- 
tations buys  articles  suitable  for  the  family  use  and  for  her  own  ward- 
robe, the  presumption  is,  in  the  absence  of  evidence  to  the  contrary, 
that  the  husband  is  liable.  But  if  it  appears  affirmatively  that  the  lady 
was  abundantly  supplied  with  similar  articles,  purchased  elsewhere^ 
and  that  there  was  not,  in  fact,  any  reasonable  necessity  for  such 
expenditure,  the  husband  cannot  be  held  responsible,  unless  there 
is  some  affirmative  proof  of  actual  authority  outside  of  the  authority 
the  law  infers  from  their  marital  relations."  This  view  was  substan- 
tially repeated  by  the  trial  judge  in  his  charge  to  the  jury,  and  an 
exception  was  taken  thereto.  The  trial  court  also  submitted  to  the 
jury  the  question  as  to  whether  the  plaintiff  gave  credit  to  the 
defendant  or  to  his  wife.     The  verdict  was  in  favor  of  the  defendant. 

The  only  question  which  we  deem  it  necessary  to  consider  is  that 
raised  by  the  exception  to  the  charge  as  made,  submitting  to  the  jury 
th^  question  as  to  whether  the  defendant's  wife  was  abundantly  '^up- 
plied  with  similar  articles  to  those  purchased  at  the  time  of  the  pur- 


96  HUSBAND   AND    WIFE. 

chase,  and  therefore  the  articles  were  not  necessary  for  her  support 
and  maintenance.  The  majority  of  the  judges  of  the  Appellate 
Division  appear  to  have  entertained  the  view  that,  if  the  articles 
purchased  by  the  wife  were  of  the  character  ordinarily  deemea 
necessaries,  such  as  clothing,  table  linen,  towels,  and  napkins,  the 
merchant  was  at  liberty  to  furnish  her  therewith,  and  charge  her 
husband  therefor,  without  regard  to  the  amount  purchased  or  the 
necessity  therefor.  In  commenting  upon  the  charge  of  the  trial 
court,  they  say  in  their  opinion:  "We  have,  therefore,  this  principle 
enunciated:  That  if  a  wife,  living  with  her  husband,  seeks  to  pur- 
chase goods  of  a  merchant,  the  latter  must  make  Inquisitorial 
examination,  and  ascertain  whether  the  family  possess  an  adequate 
supply  of  the  articles  which  the  wife  desires  to  purchase."  It 
will  readily  be  observed  that  while  the  amount  involved  in  this  case 
is  trivial,  the  principle  is  of  considerable  importance.  While  the 
question  seems  to  have  been  considered  in  the  lower  courts,  it  does 
not  appear  to  have  been  squarely  decided  in  this  court.  In  the  case 
of  Keller  V.  Phillips,  39  N.  Y.  351,  the  husband  had  given  the  mer- 
chant notice  not  to  give  the  wife  further  credit,  and  in  the  case  of 
Hatch  V.  Leonard,  165  N.  Y.  435,  59  N.  E.  270,  the  husband  and  wife 
lived  separate  and  apart;  so  that  neither  of  these  cases  afford  us 
much  help  in  determining  the  question  presented  in  this  case.  In 
the  case  of  Cromivellv.  Benjamin,  41  Barb.  558,  the  General  Term 
sustained  the  right  of  a  merchant  to  recover  of  the  defendant  for 
the  necessaries  furnished  to  his  wife.  J.  C.  Smith,  J.,  in  delivering 
the  opinion,  states  the  law,  as  he  understood  it,  as  follows:  "  But 
the  husband  may  be  liable  for  necessaries  furnished  to  the  wife  in 
certain  cases,  though  the  existence  of  an  agency  or  assent,  express 
or  implied  in  fact,  is  wholly  disproved  by  the  evidence;  and  this  upon 
the  ground  of  an  agency  implied  in  law,  though  there  can  be  none 
presumed  in  fact.  It  is  a  settled  principle  in  the  law  of  husband 
and  wife  that  by  virture  of  the  marital  relation,  and  in  consequence 
of  the  obligations  assumed  by  him  upon  marriage,  the  husband  is 
legally  bound  for  the  supply  of  necessaries  to  the  wife  so  long  as  she 
does  not  violate  her  duty  as  wife;  that  is  to  say,  so  long  as  she  is 
not  guilty  of  adultery  or  elopement.  The  husband  may  discharge 
this  obligation  by  supplying  her  with  necessaries  himself  or  by  his 
agents,  or  giving  her  an  adequate  allowance  in  money,  and  then  he 
is  not  liable  to  a  tradesman  who,  without  his  authority,  furnishes 
her  with  necessaries."  In  Bloomingdale  v.  Brinckerhoff,  2  Misc.  Rep. 
49,  20  N.  Y.  Supp.  858  it  was  held  that,  in  order  to  entitle  the 
tradesman  to  recover  from  the  husband,  it  was  incumbent  upon  htm 
to  show  that  "the  articles  supplied  to  the  wife  were  not  only  of  the 


WIFE^S   CONTRACTS   FOR   NECESSARIES. 


97 


kind  usually  denominated  necessaries,  because  their  need  is  common 
to  all  persons,  but  that,  in  consequence  of  the  inadequacy  of  the 
husband's  provisions,  they  were  actually  required  for  the  wife's 
proper  support,  commensurate  with  his  means,  her  wonted  living  as 
his  spouse,  and  her  station  in  the  community." 

There  are  numerous  other  cases  reported  in  this  and  other  states 
bearing  upon  the  liability  of  the  husband  for  necessaries,  but  atten- 
tion has  been  called  to  those  most  nearly  in  point  upon  the  question 
involved  in  this  case.  There  are,  however,  some  cases  in  England 
where  the  question  appears  to  have  been  more  thoroughly  considered 
in  the  higher  courts.  In  the  case  of  Debenhatn  v.  Mellon,  L.  R.  5  Q.  B. 
Div.  394,  Bramwell,  L.  J.,  in  stating  the  question  involved,  says: 
"The  goods  were  necessaries  in  the  sense  that  they  consisted  of 
articles  of  dress  suitable  to  the  wife's  station  in  life;  but  they  were 
not  necessaries  in  the  sense  that  she  stood  in  need  of  them,  for  she 
had  either  a  sufficient  supply  of  articles  of  a  similar  kind,  or  at  least 
sufficient  means  from  her  husband  or  otherwise  to  acquire  them 
without  running  him  into  debt  for  them."  He  then  proceeds  to 
state  the  cases  in  which  the  husband  would  be  liable;  as,  for  instance 
where  he  turns  his  wife  out  of  doors,  or  conducts  himself  in  such 
manner  as  to  oblige  her  to  leave  him,  she  may  provide  herself  at  his 
expense,  and  pledge  his  credit  for  necessaries,  such  as  food,  apparel, 
lodging,  and  medicine.  In  case  they  are  living  and  cohabiting  to- 
gether, and  there  has  been  a  custom  of  contracting  short  credit  as 
to  a  class  of  articles,  such  as  grocery  and  meat  bills,  her  authority 
to  order  the  same  may  be  inferred,  not  for  the  reason  that  it  springs 
out  of  the  contract  of  marriage,  but  because  of  her  existing  relation 
as  the  head  of  his  household;  that  the  same  authority  would  be 
inferred  in  favor  of  a  sister,  or  a  housekeeper,  or  other  person  who 
presided  over  the  management  of  his  house.  The  judge  concluded 
by  holding  that  the  husband  was  not  liable.  The  same  case  was  sub- 
sequently brought  up  for  review  in  the  House  of  Lords.  L.  R.  6  Appeal 
Cases,  24.  Lord  Chancellor  Selborne  then  considered  two  questions. 
The  first  was  whether  the  mere  fact  of  marriage  implies  a  mandate 
by  law,  making  the  wife  the  agent  in  law  of  her  husband,  to  bind  him 
by  her  contract,  and  to  pledge  his  credit.  Upon  this  point  he  says 
that:  "According  to  all  the  authorities,  there  is  no  such  mandate  in 
law  from  the  fact  of  marriage  only,  except  in  the  particular  case  of 
necessity  —  a  necessity  which  may  arise  when  the  husband  has  de- 
serted the  wife,  or  has  by  his  conduct  compelled  her  to  live  apart  from 
him,  without  properly  providing  for  her;  but  not  when  the  husband 
and  wife  are  living  together,  and  when  the  wife  is  properly  maintained, 
because  there  is,  in  that  state  of  circumstances,  no  prima  facie  evi- 
[DoMESTic  Relations —  7.] 


98  HUSBAND   AND   WIFE. 

dence  that  the  husband  is  neglecting  to  discharge  his  necessary  duty,  or 
that  there  is  any  necessary  occasion  for  the  wife  to  run  him  into  debt 
for  the  purpose  of  keeping  herself  alive  or  supplying  herself  with  lodg- 
ing or  clothing."  The  second  question  considered  by  the  Lord  Chan- 
cellor was  whether  the  law  implied  such  a  mandate  from  the  fact  of 
cohabitation.  Upon  this  point  he  says:  "If,  therefore,  the  law  did 
imply  any  such  mandate  from  cohabitation,  it  must  be  an  implica- 
tion of  fact,  and  not  as  a  conclusion  of  law.  There  are,  no  doubt, 
various  authorities  which  show  that  the  ordinary  state  of  cohabita- 
tion between  husband  and  wife  does  carry  with  it  some  presumption 
—  some  prima  facie  evidence  —  of  an  authority  to  do  those  things, 
which,  in  such  ordinary  circumstances  of  cohabitation,  it  is  usual  for 
a  wife  to  do,  *  *  *  because  in  that  state  of  circumstances  the 
husband  may  truly  be  said  to  do  acts,  or  habitually  to  consent  to 
acts,  which  hold  the  wife  out  as  his  agent  for  certain  purposes. 
*  *  *  But  where  there  has  been  nothing  done  —  nothing  con- 
sented to  by  the  husband  —  to  justify  the  proposition  that  he  has 
ever  held  out  the  wife  as  his  agent,  I  apprehend  that  the  question 
whether,  as  a  matter  of  fact,  he  has  given  the  wife  authority,  must 
be  examined  upon  the  whole  circumstances  of  the  case.  No  doubt, 
though  not  intending  to  hold  her  out  as  his  agent,  and,  though  she 
may  not  actually  have  had  authority,  the  husband  may  have  so  con- 
ducted himself  as  to  entitle  a  tradesman  dealing  with  her  to  rely 
upon  some  appearance  of  authority  for  which  the  husband  ought  to 
be  held  responsible.  If  he  has  so  acted,  he  may  be  bound;  but  the 
question  must  be  examined  as  one  of  fact,  and  all  the  authorities,  as 
I  understand  them,  practically  treat  it  so  when  they  speak  of  this 
as  a  presumption  prima  facie,  and  not  absolute;  not  a  presumption 
of  law,  but  one  capable  of  being  rebutted."  The  Chancellor  then 
proceeds  to  consider  the  facts  in  the  case,  and  concludes  by  holding 
the  husband  not  liable,  stating  that:  "It  was  argued  that,  because 
these  articles  were  found  to  be  in  some  sense  necessaries  in  their 
nature,  the  husband  ought,  therefore,  to  be  bound.  But,  even  if  the 
husband  and  wife  had  been  living  apart,  the  husband  would  not  be 
bound  by  reason  of  such  things  being  necessaries  if  he  made  a  rea- 
sonable allowance  to  his  wife,  and  duly  paid  it;  much  less  can  he  be 
bound  in  a  case  like  this,  where  they  were  not  living  apart,  and  when 
he  made  her  an  allowance  sufficient  to  cover  all  proper  expenditure 
for  her  own  and  her  children's  clothing."  In  the  still  more  recent 
case  of  Morel  Brothers  and  Compatiy  Ltd.  v.  The  Earl  of  Westmoreland, 
L.  R.  I  K.  B.  (1903)  64,  it  was  held  that  the  presumption  which  arises 
that  the  husband  has  given  the  wife  authority  to  pledge  his  credit 
for  necessaries  may  be  rebutted  by  proof  of  an  arrangement  under 


wife's  contracts  for  necessaries.  99 

which  a  substantial  allowance  has  been  made  by  the  husband  to  the 
wife  for  household  expenses.  In  this  case  Mathew,  L.  J.,  concludes 
his  opinion  by  stating:  "There  is  no  real  hardship  to  tradesmen 
involved  in  such  cases  as  this.  They  should  understand  that  the 
question  is  always  one  of  agency,  and  it  is  incumbent  upon  them  to 
prove  the  wife's  agency.  They  can  easily  protect  themselves  from 
any  great  risk  in  such  cases,  but,  if  they  think  it  answers  their  pur- 
pose better  to  go  on  giving  credit  for  goods  ordered  by  the  wife 
without  taking  any  steps  to  ascertain  whether  she  has  authority  to 
pledge  her  husband's  credit,  they  must  run  the  risk  of  its  ultimately 
turning  out  that  she  has  no  such  authority." 

Schouler  on  Husband  and  Wife,  §  107,  sums  up  the  authorities 
upon  the  subject  as  follows:  "  Not  only  is  the  husband  permitted  to 
show  that  articles  in  controversy  are  not  such  as  can  be  considered 
necessaries,  but  he  may  show  that  he  supplied  his  wife  himself,  or  by 
other  agents,  or  that  he  gave  her  ready  money  to  make  the  purchase. 
This  is  on  the  principle  that  the  husband  has  the  right  to  decide 
from  whom  and  from  what  place  the  necessaries  shall  come,  and  that 
so  long  as  he  has  provided  necessaries  in  some  way,  his  marital 
obligation  is  discharged,  whatever  may  be  the  method  he  chooses  to 
adopt.  Accordingly,  in  the  class  of  cases  which  we  are  now  con- 
sidering, namely,  where  the  spouses  dwell  together,  so  long  as  the 
husband  is  willing  to  provide  necessaries  at  his  own  home  he  is  not, 
liable  to  provide  them  elsewhere.  In  general,  while  the  spouses  live 
together,  a  husband  who  supplies  his  wife  with  necessaries  suitable 
to  her  position  and  his  own,  is  not  liable  to  others  for  debts  con- 
tracted by  her  on  such  an  account  without  his  previous  authority  or 
subsequent  sanction."  For  further  authorities  and  discussions  upon 
the  subject,  see  10  Cent.  Law  J.  341;  54  Cent.  L.  J.  472,  18  Am.  Law 
Reg.  (N.  S.)  412-416  (Judge  Bennett's  note);  20  Am.  Law  Reg. 
(N.  S.)  324  (Judge  Bennett's  note);   Clark  v.  Cox,  32  Mich.  204. 

The  discussion  of  the  English  cases,  to  which  attention  has  been 
called,  covers  the  points  involved  in  this  case.  They,  in  effect,  hold, 
in  accordance  with  the  charge  made  by  the  judge  in  this  case,  that 
the  husband,  in  defense,  may  show  that  the  wife  was  amply  supplied 
with  articles  of  the  same  character  as  those  purchased,  or  that  she 
had  been  furnished  with  ready  money  with  which  to  pay  cash  there- 
for; that  the  question  of  her  agency  is  one  of  fact,  and  is  not  a  con- 
clusion of  law  to  be  drawn  alone  from  the  marital  relation.  The 
conclusions  reached  in  these  cases  are  in  accord  with  the  rule  as 
stated  by  Schouler  and  some  of  the  decisions  alluded  to  in  this  state, 
and  we  incline  to  the  view  that  the  rule  recognized  by  them  is  the 
safer  and  better  rule  to  follow.     It  compels  the  husband  to  pay  in  a 


lOO  HUSBAND   AND    WIFE. 

proper  case,  and  at  the  same  time  affords  him  some  financial  protec- 
tion against  the  seductive  wiles  exerted  by  tradesmen  to  induce 
extravagant  wives  to  purchase  that  which  they  really  do  not  need. 
We  do  not  participate  in  the  alarm  which  appears  to  have  possessed 
the  learned  justices  of  the  Appellate  Division  on  account  of  the  pos- 
sible inquisitorial  examination  to  which  the  wives  may  be  subjected. 
The  anxiety  of  tradesmen  to  sell  will  be  sufficient  to  protect  them 
from  any  improper  "inquisitorial  examination."  If  a  wife  is  going 
to  a  merchant  to  trade,  with  whom  she  is  acquainted,  and  with  whom 
she  has  been  accustomed  to  trade  upon  the  credit  of  her  husband,  she 
may  still  continue  to  do  so  until  the  husband  gives  notice  prohibiting 
the  merchant  from  longer  giving,  credit  to  her.  But  when  she  goes 
to  a  stranger,  with  whom  she  has  never  traded  before,  and  where, 
consequently,  there  is  no  implied  authority  on  the  part  of  the  husband 
to  give  her  credit,  and  seeks  to  purchase  upon  her  husband's  credit, 
it  is  but  reasonable  and  proper  that  she  disclose  to  the  merchant  her 
authority  therefor;  or  for  the  merchant  to  request  such  disclosure. 

We  have  discovered  no  errors  in  the  rulings  of  the  trial  court. 
The  judgment  of  the  Appellate  Division  should,  therefore,  be 
reversed,  and  that  entered  upon  the  verdict  affirmed,  with  costs. 

Gray,  Vann,  Cullen,  and  Werner,  JJ.,  concur.  Parker, 
C.  J.,  dissents.     Martin,  J.,  absent. 

Judgment  reversed,  etc. 


wife's  contracts  for  necessaries.  ioi 


SKINNER  V.  TIRRELL. 

159  Mass.  474.— 1893. 

Morton,  J.  This  is  a  bill  in  equity,  in  which  the  plaintiff,  wlio  has 
advanced  money  to  the  defendant's  wife  while  living  apart  from  her 
husband,  which  she  expended,  it  is  alleged,  in  the  purchase  of  neces- 
saries, seeks  to  be  subrogated  to  the  rights  of  the  persons  furnishing 
the  necessaries,  and  prays  that  the  defendant  may  be  ordered  to  pay 
to  her  the  amount  so  advanced.  The  defendant  demurred  to  the 
bill.  The  demurrer  was  sustained  and  the  bill  was  dismissed,  and 
the  plaintiff  appealed. 

The  demurrer  was  a  general  one,  and  it  was  claimed  at  the  argu- 
ment, as  one  ground  of  it,  that  the  bill  did  not  set  out  sufficient 
facts  to  show  that  the  wife  was  living  apart  from  her  husband  for 
justifiable  cause.  Without  considering  whether  this  objection  was 
well  taken,  we  assume  that,  if  valid,  it  could  be  removed  by  amend- 
ment. The  question  then  is  whether  the  bill,  if  amended  so  as  to 
remove  this  objection,  can  be  maintained  either  on  the  ground  of 
subrogation  or  on  the  ground  of  a  general  equity.  We  think  it  can- 
not stand  on  either. 

There  can  be  no  subrogation  unless  there  is  something  to  be  sub- 
rogated to.  A  debt  or  liability  cannot  be  created  where  none  existed 
for  the  purpose  of  effecting  a  substitution.  There  never  was  any 
liability  on  the  part  of  the  defendant  to  the  parties  who  furnished 
the  wife  with  the  necessaries.  The  goods  were  sold  to  her  and  were 
paid  for  by  her.  They  were  not  furnished  on  the  defendant's 
credit,  but  on  the  wife's.  The  money  that  was  advanced  by  the 
plaintiff  was  not  advanced  to  the  parties  who  furnished  the  neces- 
saries, but  to  the  wife,  to  be  expended  by  her  as  she  saw  fit.  There 
is  no  ground,  therefore,  for  the  application  of  the  doctrine  of  subro- 
gation. Although  the  right  of  subrogation  does  not  depend  on  the 
contract,  but  rests  on  natural  justice  and  equity,  there  must  be 
either  an  agreement,  express  or  implied,  to  subrogate,  or  some  obli- 
gation, interest,  or  right,  legal  or  equitable,  on  the  part  of  the  party 
making  the  payment  or  advance  in  respect  of  the  matter  concerning 
which  payment  is  made  or  money  advanced,  in  order  to  entitle  him 
to  subrogation.  Hart  v.  Western  Railroad,  13  Met.  99;  Amory  v. 
Lowell,  I  Allen,  504;  Wall  v.  Mason,  102  Mass.  313;  ^Etna  Ins. 
Co.  V.  Middleport,  124  U.  S.  534;  Gans\.  Thieme,  93  N.  Y.  225,  232; 
Arnold  v.  Green,  116  N.  Y.  566;  Nolle  v.  Creditors,  7  Mart.  (N.  S.), 
La.  602;  J^ohnson  v.  Barrett,  117  Ind.  551;  McNeil  v.  Miller,  29  W. 
Va.    480;    Miller  s  Appeal,    119    Pa.    St.    620;  Suppiger  v.  Garrets,  20 


102  HUSBAND    AND   WIFE. 

Bradw.  (Iil.)»  ^^25;  Gadsdcr.  \ .  Jh-invti^  Speer's  Eq.  37,  41;  De  Con- 
cilio  V.  Brmcnrigg,  25  Atl.  Rep.  383;  Brewer  v.  Nash^  16  R.  I.  458, 
462;  Blackburn  BuilJiiig  Society  v.  Ciinliffe^  22  Ch.  D.  61;  Stevens  v, 
King^  84  Me.  291;  Slicldon  on  Subrogation,  sees.  2,  3,  240. 

A  mere  volunteer  is  not  entitled  to  subrogation.  yEtna  Ins.  Co.  v. 
Middleport^  Arnold  v.  Green.,  and  Gadsden  v.  Brcnon,  ubi  supra;  Shel- 
don on  Subrogation,  sees.  241,  242,  and  cases  cited.  Nor  is  one  who 
lends  money  to  another  to  pay  a  debt  entitled  as  a  matter  of  right  to 
stand  in  the  creditor's  shoes.  Sheldon  on  Subrogation,  sees.  241, 
242,  and  cases  cited.  So  far  as  subrogation  is  concerned,  the  plain- 
tiff's contention  resolves  itself  into  the  proposition  that  the  defend- 
ant's wife  could  have  bought  on  her  husband's  credit  the  necessaries 
which  she  purchased  and  paid  for  with  the  money  advanced  to  her 
by  the  plaintiff;  that  if  the  plaintiff  had  paid  the  parties  supplying 
the  necessaries  their  several  demands,  she  would  have  been  entitled 
to  be  subrogated  to  their  claims  against  the  defendant;  and  that, 
therefore,  a  decree  should  be  entered  in  her  favor  against  the  de- 
fendant in  this  suit.  If  the  premises  are  correct,  manifestly  this 
conclusion  does  not  follow  from  them. 

There  are  ancient  and  modern  cases  in  E^ngland  which  hold  that  a 
person  advancing  money  to  a  married  woman  under  circumstances 
like  those  in  this  case  can  recover  the  same  of  the  husband  in  equity. 
Harris  v.  Lee,  1  P.  Wms.  482;  Marlow  v.  Pitfeild,  i  P.  Wms.  558; 
Deare  v.  Soutten,  L.  R.  9  Eq.  151;  Jcnncr  v.  Morris,  3  DeG.  F.  &J. 
45;  see,  also,  In  re  Wood,  i  DeG.,  J.  <S:  S.  465. 

These  cases  have  been  followed  in  this  country  in  Connecticut 
{Kenvon  v.  Farris,  47  Conn.  510),'  and  there  is  a  dictum  in  a  case  i  ■ 
Pennsylvania.  Walker  v.  Simpson,  7  Watts.  &  Sergt.  83.  To  tl.e 
same  effect,  certain  text-writers,  also  following  the  English  cases, 
have  stated  the  law  to  be  as  there  held,  i  Bish.  Mar.  Div.  &  Sep. 
sees.  1190,1191;  Pom.  Eq.  Jur.  sees.  1299,  1300;  2  Kent,  Com.  146, 
note;  Schouler,  Domestic  Relations,  sec.  61,  note. 

But  those  cases  do  not  appear  to  us  to  rest  on  any  satisfactory 
principle.  It  was  apparently  conceded  by  the  Lord  Chancellor  in 
yenner  v.  Morris,  supra,  that  they  did  not.  He  seems  to  have 
yielded  to  them  simply  as  precedents  which  he  was  bound  to  follow. 
The  earliest  one,  Harris  v.  Lee,  on  which  the  subsequent  ones  rely, 
referred  the  jurisdiction,  without  much  discussion  or  consideration 
of  it,  to  the  principle  of  subrogation.  For  reasons  already  given, 
we  think  that  principle  inapplicable.  It  is  said  that  equity  has 
jurisdiction,  because  there  is  no  remedy  at  law.  It  is  admitted  that 
there  is  none  at  law.  But  it  is  contended  that  the  defendant  was 
bound  to  furnish  his  wife  with  necessaries;  that  the  monev  which 
'  And  in  Lueppie  v.  Oshom,  "52  N.  J.  Eq.  637. 


WIFE'S   ANTE-NUPTIAL   CONTRACTS   WITH    HER   HUSBAND.   I03 

the  plaintiff  advanced  to  her  was  actually  expended  in  good  faith  by 
her  for  necessaries;  that  it  will  be  no  hardship  upon  the  defendant 
to  be  obliged  to  pay  for  necessaries  which  the  law  would  have  com- 
pelled him  to  furnish;  and  that  in  the  interests  of  justice  equity 
should  compel  him  to  pay  the  plaintiff  the  sums  which  she  has 
advanced.  In  effect,  this  is  the  same  as  saying  that  in  equity  money 
advanced  to  a  wife  living  separate  from  her  husband  and  for  justifi- 
able cause,  and  expended  by  her  in  good  faith  in  the  purchase  of 
necessaries,  should  itself  be  regarded  as  necessaries  and  recov- 
erable accordingly.  At  law  it  is  clear  that  money  is  not  neces- 
saries, and  that  a  married  woman  living  separate  from  her  hus- 
band cannot  borrow  money  on  his  credit  to  purchase  necessaries. 
What  is  necessaries  must  be  the  same  in  equity  as  at  law.  It  cannot 
be  one  thing  on  one  side  of  the  court  and  another  thing  on  the 
other.  There  may  be  strong  reasons  why  married  women,  com- 
pelled by  their  husbands'  misconduct  to  live  apart  from  them, 
should  be  allowed  to  borrow  money  on  their  husband's  credit  for  the 
purchase  of  necessaries.  It  is  for  the  Legislature,  if  it  deems  it  ad- 
visable, to  give  them  such  power.  In  this  State  they  are  not  with- 
out a  remedy  in  such  cases.  The  Probate  Court  may,  upon  their 
petition,  order  the  husband  to  pay  to  them  from  time  to  time  such 
sums  of  money  as  it  deems  expedient  for  their  support.  Pub.  Sts, 
c.  147,  sees.  2,2,  et  seq.  It  is  possible  that  this  statute  should  be 
taken  as  a  declaration  of  the  legislative  sense  that  a  married  woman 
living  apart  from  her  husband  should  obtain  money  for  necessaries 
through  the  aid  of  the  Probate  Court,  and  not  by  pledging  his 
credit.  However  that  may  be,  a  majority  of  the  court  can  discover 
no  satisfactory  ground  on  which  jurisdiction  in  equity  of  the  present 
suit  can  rest. 
Decree  affirmed. 


Wifes  Ajite-UMptial  Contracts  with  her  Husband. 

PIERCE  V.   PIERCE. 
71  N.  Y.  154 — 1877. 

Miller,  J.  Upon  the  accounting  of  Mrs.  Pierce,  as  administratrix 
of  her  deceased  husband's  estate,  before  the  surrogate,  it  was  held 
that  the  ante-nuptial  agreement  entered  into  at  the  time  of  their 
marriage  was  valid  and  in  full  force,  and  for  that  reason  she  was 
not  entitled  to  a  share,  as  his  widow,  in  the  distribution  of  his  estate, 
and  was  only  allowed  the  amount  named  in  said  agreement.  The 
agreement  referred  to  purported  to  have  been  entered  into  in  con- 


I04  HUSBAND   AND    WIFE. 

templation  of  marriage,  and  for  the  purpose  of  making  provision  for 
a  fit  and  proper  settlement  by  the  deceased,  for  the  benefit  of  his 
intended  wife,  and  thereby  the  deceased  agreed  that  if  the  marriage 
was  had  and  solemnized,  he  would,  in  case  she  survived  him,  pay  or 
cause  to  be  paid  to  her,  the  sum  of  $500  for  her  sole  and  separate 
use;  and  she  agreed,  in  consideration  of  the  "  money  paid  to  her," 
that  said  money  should  be  in  full  satisfaction  of  her  dower,  and  bar 
her  from  claiming  the  same,  or  any  share  of  his  personal  property, 
unless  given  to  her. 

We  are  of  the  opinion  that  the  contract  in  question  cannot  be 
upheld,  for  the  reason  that  the  evidence  establishes,  beyond  any  con- 
troversy, that  it  was  executed  by  the  respondent,  under  a  belief  — 
which  was  created  by  the  conduct  and  declarations  of  the  de- 
ceased—  that  it  contained  more  beneficial  provisions  in  her  favor 
than  were  contained  in  the  same,  and  that  the  deceased,  taking 
advantage  of  the  confidential  relationship  existing  between  him  and 
the  respondent,  who  was  the  intended  wife  of  the  deceased,  he  was 
chargeable  with  fraud  and  misrepresentation  in  procuring  her  signa- 
ture to  the  same. 

Ante-nuptial  contracts,  whereby  the  future  wife  releases  her  claim 
to  her  right  of  dower,  and  all  other  rights  to  the  estate  of  her  hus- 
band upon  his  decease,  are  fully  recognized  in  law.  When  fairly 
made  and  executed  without  fraud  or  imposition,  they  will  be  en- 
forced by  the  courts.  The  surrender  and  release  of  rights  to  be 
acquired  by  the  intended  wife  by  the  marriage  relation  must,  how- 
ever, be  regarded  with  the  most  rigid  scrutiny;  and  courts  will  not 
enforce  contracts  of  this  nature  against  the  wife  where  the  circum- 
stances establish  that  she  has  been  over-reached  and  deceived,  or 
been  induced  by  false  representations  to  enter  into  a  contract  which 
does  not  express  or  carry  out  the  real  intention  of  the  parties. 
The  relationship  of  parties  who  are  about  to  enter  into  the  marriage 
state  is  one  of  mutual  confidence,  and  far  different  from  that  of 
those  who  are  dealing  with  each  other  at  arm's  length.  This  is  espe- 
cially the  case  on  the  part  of  the  woman;  and  it  is  the  duty  of  each 
to  be  frank  and  unreserved  when  about  to  enter  into  an  ante-nuptial 
contract,  by  a  full  disclosure  of  all  facts  and  circumstances  which 
may  in  any  way  affect  the  agreement.     Kline  v.  Kline^  57   Pa.  120. 

In  the  case  cited,  which  involved  the  validity  of  a  marriage  con- 
tract, it  was  held  there  was  error  in  the  charge  of  the  judge  to  the 
jury  that  the  woman  was  bound  to  exercise  her  judgment,  and  take 
advantage  of  the  opportunity  that  existed  to  obtain  information  —  if 
she  did  not  do  so,  it  was  her  fault;  and  that  the  parties  were  deal- 
ing at  arm's  length.     See,  also,  case   of  Kline's  Estate^  64  Pa.  122, 


wife's  ante-nuptial  contracts  with  her  husband.      105 

which  holds  that  parties  to  such  a  contract  occupy  a  confidential 
relation;  and  Tarbell  v.  Tarbcll^  10  Allen,  278;  Fay  v.  Rickman, 
I  N.  C.  (Bush  Eq.),  278;  Woodward  v.  Woodward^  5  Sneed.  49. 
These  authorities  go  very  far  in  holding  that  the  courts  require 
strict  proof  of  fairness,  when  called  upon  to  enforce  an  ante-nuptial 
contract  against  the  wife,  and  especially  when  it  is  apparent  that  the 
provision  made  for  the  wife  is  inequitable,  unjust,  and  unreasonably 
disproportionate  to  the  means  of  the  husband.  The  rule  undoubt- 
edly is,  that  in  such  a  case  every  presumption  is  against  the  validity 
of  the  contract,  and  the  burden  of  proof  is  cast  upon  the  husband, 
or  those  who  represent  hiTn,  in.  order  to  uphold  and  enforce  the  same 
as  a  valid  and  subsisting  agreement.  It  is  also  a  well-settled  prin- 
ciple that  a  court  of  equity  will  interpose  its  power  to  set  aside  an 
instrument  executed  between  parties  who  stand  in  confidential  rela- 
tions, when  there  is  evidence  showing  fraud,  or  even  when  it  appears 
that  undue  influence  has  been  exercised,  when  one  party  is  so  situ- 
ated as  to  exercise  a  controlling  influence  over  the  will,  conduct, 
and  interests  of  the  other.  Sears  v.  Shafer,  6  N.  Y.  268;  Nesbit  y . 
Lockma/i,  34  id.  167.  So,  also,  when  one  party  is  intrusted  to  reduce 
a  contract  to  writing,  he  is  bound  to  do  so  faithfully  and  truly;  and 
any  variation  from  it,  by  omitting  some  of  its  terms,  or  by  inserting 
provisions  not  embraced  in  it,  if  not  known  to  the  other  party  and 
distinctly  assented  to  by  him,  is  a  clear  fraud.  Botsford  m .  McLean, 
45  Barb.  478-488,  and  authorities  cited.  While  parties  to  a  written 
agreement  should  look  out  for  themselves,  and  ordinarily  the  writ- 
ten contract  is  presumed  to  express  their  common  intention,  yet, 
when  one  occupies  a  confidential  relationship  to  the  other,  and  was 
intrusted  with  reducing  it  to  writing,  and  it  is  clearly  made  to  appear 
that  the  written  contract  was  untrue,  and  misrepresents  and  mis- 
states the  real  intention  as  understood  and  agreed  upon,  it  cannot 
stand.  More  especially  is  this  rule  applicable  when  undue  advan- 
tage has  been  taken,  and  a  fraud  perpetrated.  Within  the  rules 
referred  to,  a  case  is  made  out  by  the  evidence  which  estab- 
lishes that  the  alleged  ante-nuptial  agreement  was  nugatory  and 
void.  The  testimony  is  uncontradicted  and  unimpeached,  that 
when  the  respondent  signed  the  contract,  she  acted  under  a  belief 
and  conviction  that  she  was  thereby  to  receive  the  sum  of  $500  in 
cash,  a  deed  of  a  house  and  lot,  and  $500  if  she  survived  the  de- 
ceased. The  contract  was  stated  or  read  to  the  respondent  as  con- 
taining those  provisions,  before  the  proposed  marriage;  and  when 
it  was  assented  to  by  her,  at  the  time  when  the  contract  was  finally 
executed,  the  deceased  stated  to  the  clergyman  who  performed  the 
marriage  ceremony,  and  witnessed  the  written  agreement,  that  it  was 


106  HUSBAND   AND    WIFK. 

unnecessary  for  him  to  read  it  —  intimating  that  the  contents  were 
known  and  understood.  It  was  not  read  at  that  time,  nor  does  it 
appear  distinctly  that  it  was  ever  read  by  the  respondent  at  any 
time.  It  is  also  proved  that  after  the  marriage,  on  one  occasion, 
the  deceased  asked  the  respondent  if  she  did  not  wish  she  had  the 
contract,  and  she  replied  it  was  not  good  for  anything,  unless  he 
paid  her  the  $500  he  had  agreed  to.  And  in  the  summer  of  i860, 
the  respondent  stated  to  the  deceased  that  he  had  agreed  to  give 
her  the  house  and  lot,  and  asked  him  why  he  did  not  do  it;  and  he 
replied,  that  perhaps  she  should  have  the  house  he  lived  in, 
or  to  that  effect.  It  thus  appeared  that  he  acquiesced  in  the  state- 
ment made  as  to  the  contents  of  the  contract,  and  did  not  deny  that 
it  contained  the  provisions  claimed  by  her.  The  proof  referred  to 
shows  that  he  kept  it  all  the  time  in  his  own  possession,  or  under  his 
own  control;  and  when  called  upon  to  fulfill  his  engagement,  he 
failed  to  deny  the  statements  as  to  the  agreement  actually  made,  and 
virtually  admitted  that  they  were  correct. 

It  is  plain  that  the  respondent  understood  the  contract  as  con- 
taining the  provisions  stated  by  the  deceased,  and  that  the  deceased 
understood  that  such  was  her  belief  as  to  its  contents.  He  per- 
mitted her  to  act  on  this  hypothesis,  and  while  laboring  under  an 
entire  mistake,  without  correcting  it,  and  it  does  not  rest  with  his 
heirs  now  to  claim  that  it  was  otherwise  than  the  deceased  stated 
and  the  respondent  understood  at  the  time.  She  married  him  under 
such  a  belief,  and  he  having  knowledge  that  such  was  her  under- 
standing of  the  agreement,  those  who  represent  him  are  estopped  now 
from  insisting  that  the  contract  was  valid  and  should  be  enforced. 

For  the  reasons  stated,  the  alleged  contract  was  invalid  and  void, 
and  the  General  Term  very  properly  modified  the  decree  of  the  sur- 
rogate by  allowing  the  respondent  a  distributive  share,  as  widow, 
in  the  estate  of  the  deceased. 

No  other  question  raised  demands  comment,  and  the  judgment  of 
the  General  Term  should  be  affirmed,  with  costs. 

All  concur,  except  Rapallo,  J.,  absent. 

Judgment  affirmed. 


FARLEY  V.  FARLEY. 

91  Ky.  497. — 1891. 

Judge  Bennett  delivered  the  opinion  of  the  court. 

The  appellant,   while  a  feme  sole,   executed    to    the    appellee  the 

notes,  and  the  mortgage  on  her  land   to  secure  one  of  the  notes, 

now  in  controversy.     She  and  the  appellee  thereafter  married  each 


wife's  ante-nuptial  contracts  with  her  husband.      107 

other,  and  while  they  were  husband  and  wife,  and  said  notes  not 
having  been  paid,  the  appellee  brought  suit  on  them,  seeking  a  per- 
sonal judgment  and  foreclosure  of  said  mortgage. 

The  appellant  interposed  the  defense  that  by  her  marriage  with 
the  appellee  said  debts  were,  in  law,  paid,  or  extinguished,  which 
had  the  effect  to  cancel  said  mortgage.  During  the  pendency  of 
this  suit  the  appellee  obtained  a  divorce  from  the  appellant,  in  which 
each  party  was  restored  to  any  property  not  disposed  of  at  the  com- 
mencement of  the  action,  which  such  party  might  have  obtained, 
directly  or  indirectly,  from  or  through  the  other,  etc. 

The  lower  court  decided  that  the  subsequent  marriage,  under  the 
circumstances  did  not  extinguish  the  said  mortgage,  and  ordered 
the  land  sold  to  pay  the  mortgage  debt. 

By  the  common  law,  marriage  has  the  legal  effect  of  paying  or 
extinguishing  the  debt  that  the  husband  might  owe  the  wife,  or  the 
wife  the  husband,  at  the  time  of  the  marriage.  By  that  law  the 
husband,  by  the  marriage,  became  responsible  for  the  debts  due  by 
the  wife  at  the  time,  and  became  bound  to  provide  for  her  comfort 
and  maintenance  during  coverture,  and,  in  return,  all  her  personal 
estate,  of  whatever  description,  became  absolutely  his.  If  she,  at 
the  time  of  marriage,  held  a  note  on  him,  the  note  was,  in  law,  paid ; 
it  became  his.  If  he  held  a  note  on  her,  it,  in  law,  was  paid  or 
extinguished  by  the  marriage.  If,  at  the  time,  she  was  indebted  to 
him,  say  one  thousand  dollars,  and  possessed  say  one  hundred 
thousand  dollars,  the  law  gave  him  said  sum,  and  at  the  same 
time  paid  her  debt  to  him.  If  she  took  one  thousand  dollars 
of  this  sum  and  paid  the  debt,  she  would  take  what  already 
belonged  to  the  husband  by  virtue  of  the  marriage.  Suppose  she 
were  to  say  to  the  husband,  you  got  ten  thousand  dollars  by  me, 
which  ought  to  pay  this  debt,  would  he  be  permitted  to  say  that  he 
got  what  the  law  gave  him,  and  as  she  owned  a  tract  of  land  which 
the  law  did  not  give  him,  except  the  rent  and  use,  he  would  subject 
that  to  the  payment  of  the  debt  ?  Surely  a  court  of  equity  would 
not  allow  this.  Surely  it  would  say  to  him,  as  the  law  gave  him, 
upon  the  marriage,  all  the  personal  estate  then  owned  or  thereafter 
acquired  by  this  woman,  it  also  paid  or  extinguished  her  indebted- 
ness to  him.  It  would  say  to  him  still  more  specifically,  it  is  the  right, 
without  reference  to  the  quantity  received,  to  her  personal  estate 
and  her  earnings  that  pays  or  extinguishes  her  indebtedness  to  him. 

Now,  this  common-law  rule  prevails  in  this  State,  except  as  it  is 
modified  by  statute,  which  modification  consists  in  the  wife's  retain- 
ing the  legal  title  to  her  real  estate,  and  the  husband's  non-liability 
for  the  payment  of  any  ante-nuptial  debts  of  hers,  except  to  the  extent 


Io8  HUSBAND   AND    WIFE. 

that  he  received  personal  estate  from  her  by  reason  of  the  marriage. 
This  non-liabihty  is  more  favorable  to  him  than  was  the  common- 
law  rule,  which  was  intended  to  establish  equality,  in  view  of  the 
fact  that  the  statute  allows  her  to  retain  the  title  to  her  real  estate; 
but  it  does  not  have  the  effect  not  to  pay  any  debt  that  she  might 
owe  him,  because  he  is  yet  entitled  to  all  her  personal  estate,  time, 
labor  and  earnings,  which  should  have  the  legal  effect  of  paying  or 
extinguishing  her  indebtedness  to  him.  She  could  still  say  to  him 
that  the  thousands  of  dollars  that  were  once  hers,  and  out  of  which 
she  could  have  paid  the  debt,  were  now  his,  and  her  earnings,  once 
hers,  and  out  of  which  she  could  have  paid  the  debt,  were  now  his, 
and  she,  consequently,  had  nothing  with  which  to  pay.  But  he  says, 
you  have  land,  pay  me  out  of  that;  but  she  says  you  control  the 
rents  and  income  from  that  land,  and  if  1  offer  you  that,  you  will  tell 
me  that  you  are  entitled  to  that  by  law.  Yes,  of  course,  give  me 
the  title;  you  have  that  left.  But,  instead  the  common  law  says  that 
it  is  the  acquisition  by  the  husband  of  this  right,  although  never  sub- 
stantially realized,  that  pays  the  wife's  indebtedness  to  the  husband, 
and  the  reason  of  the  rule  exists  notwithstanding  our  statutory 
modifications.  This  common-law  rule  as  to  payment  does  not  obtain 
where  the  ante-nuptial  contract  was  not  to  be  enforced  during  cover- 
ture, or  where  the  wife,  by  either  contract  or  the  law,  retains  all  her 
estate  as  a  separate  estate;  then,  in  that  case,  the  reason  ceases,  and 
equity  will  relieve  against  the  rule.  But  such  is  not  the  case  here; 
the  modifications  suggested  do  not  change  the  essence  of  the  reason, 
consequently  the  rule  obtains  and  said  indebtedness  was,  in  law,  paid. 

But  it  is  said  that  the  mortgage  gave  the  appellee  an  equity  which 
he  could  enforce  after  the  marriage.  Well,  the  mortgage  did  not 
convey  to  the  appellee  any  equity  except  as  that  equity  was  sup- 
ported by  the  debt  that  the  equitable  conveyance  was  intended  to 
secure;  and  if  such  debt  was  thereafter  paid  in  fact,  or  by  operation 
of  law,  the  lien  or  equity  became  eo  instante  discharged.  Such  lien 
subsists  upon  the  debt  that  it  secures;  and  when  that  debt  is  paid, 
or  extinguished  by  either  actual  payment  or  payment  by  operation 
of  law,  the  lien  itself  is  thereby  discharged. 

But  it  is  said  the  divorce"  restored  each  party  to  all  his  property 
not  disposed  of  before  the  commencement  of  the  action  as  fully  as  if 
there  had  been  no  marriage.  The  answer  to  this  proposition  is, 
that  the  appellee's  property  in  these  notes  was  disposed  of  before 
the  action  was  commenced.  They  were  paid,  or  extinguished,  by 
the  marriage,  and  the  divorce  did  not  revive  them. 

The  judgment  is  reversed,  with  directions  to  dismiss  the  appellee's 
petition. 


WIPES    POST-NUPTIAL   CONTRACTS   WITH    HER    HUSBA>:D.       109 

Wifes  Post-nuptial  Co7itracts  with  her  Husband. 

SPOONpR   V.   SPOONER. 

155  Mass.  52.— 1891. 

Appeal  from  a  decree  of  the  Probate  Court  dismissing  the  peti- 
tion of  Susan  G.  Spooner,  as  administratrix  of  the  estate  of  her  late 
husband  Walter  Spooner,  for  a  license  to  sell  real  estate  for  the  pay- 
ment of  debts.  The  case  was  heard  by  Knowlton,  J.,  who  reported 
it  for  the  consideration  of  the  full  court,  in  substance  as  follows: 

It  appeared  that  the  appellant  advanced  from  her  separate  estate 
to  her  husband  in  his  lifetime  the  sum  of  $1,075,  ^^d  took  in  return 
therefor  a  note  signed  by  her  husband  and  payable  to  the  order  of 
Walter  R.  Spooner,  and  by  him  indorsed  to  the  appellant  in  the  life- 
time of  the  husband.  The  note  was  indorsed  at  the  time  when  it 
was  made,  and  after  being  indorsed  was  delivered  to  the  appellant. 
It  was  never  in  the  possession  of  the  payee  except  for  his  indorse- 
ment, and  was  delivered  to  the  appellant  by  the  husband.  The  note 
and  indorsement  (except  the  signature  of  payee)  was  in  the  hand- 
writing of  the  husband.  There  was  no  indebtedness  of  the  estate 
except  said  note,  and  if  this  note  should  be  paid  it  is  necessary  to 
sell  a  part  of  the  real  estate,  and  the  petition  should  be  granted. 

Allen,  J.  It  has  often  been  held  that  a  promissory  note  running 
directly  from  a  husband  to  his  wife,  or  vice  versa,  is  void,  and  can- 
not be  made  valid  by  a  transfer  to  a  third  person.  Woodward  v. 
Spurr,  141  Mass.  283,  and  cases  there  cited.  But  where  a  note  given 
by  a  husband  to  a  third  person  is  valid  in  its  inception,  it  does  not 
become  a  nullity  by  being  transferred  to  the  wife,  though  she  may 
not  be  able  to  maintain  an  action  against  him  upon  it  in  her  own 
name.  Thus,  in  Butler  v.  Ives,  139  Mass.  202,  a  wife  borrowed 
money  from  her  husband  and  made  a  note  secured  by  mortgage 
therefor  to  a  third  person  for  her  husband's  benefit,  and  it  was  held 
that  the  note  and  mortgage  were  not  extinguished  by  being  subse- 
quently assigned  to  the  husband,  though  he  could  not  enforce  them 
by  proceedings  at  law  in  his  own  name,  and  that  the  right  to  enforce 
them  revived  when  they  were  transferred  by  him  to  a  third  person. 
See,  also,  Degnan  v.  Farr,  126  Mass.  297.  In  each  of  these  last 
two  cases  the  original  transaction  was  a  loan  of  money  between  hus- 
band and  wife,  and  in  each  a  note  and  mortgage  were  given  to  a 
third  person  for  the  purpose  of  securing  the  repayment  of  the  loan. 
In  each  case  it  was  considered  that  the  note  was  valid  in  its  incep- 
tion, so  that  it  might  have  been  sued  in  the  name  of  the  payee  for 


no  HUSBAND    AND    WIFE. 

the  lender's  benefit.  The  circumstance  that  a  third  person  was 
introduced  as  payee,  merely  for  tlie  purpose  of  avoiding  the  objec- 
tion that  husband  and  wife  cannot  contract  directly  with  each  other, 
did  not  render  the  note  invalid.  The  present  case  falls  within  the 
doctrine  thus  established.  The  payee  might  have  maintained  an  ac- 
tion upon  the  note.  The  consideration  was  sufficient.  Atlantic 
Bank  v.  Tavener,  130  Mass.  407;  Nichols  v.  Nichols^  136  Mass.  256. 
His  title  was,  in  substantial  particulars,  like  what  existed  in  Dci^nan 
V.  Farr  and  Butler  v.  Iijcs,  above  cited.  If  Mrs.  Spooner,  after 
taking  the  note,  had  transferred  it  to  a  third  person,  such  third  person 
could  have  maintained  an  action  upon  it.  Such  transfer  might  be 
made  now.  But  since  her  husband  is  dead,  formal  objection  to  pro- 
ceedings in  her  own  name  has  ceased;  the  note  is  a  valid  indebted- 
ness against  his  estate,  and  she,  as  administratrix,  may  maintain  her 
petition  for  license  to  sell  real  estate  to  raise  money  for  its  payment. 
Decree  reversed. 


CAREY  V.   MAC  KEY. 

82  Maine,  516. — 1890. 

On  Report. 

This  was  an  action  of  debt  on  the  bond  of  the  defendant,  made 
and  given  to  the  plaintiff,  then  his  wife,  September  12,  1882,  for  her 
separate  support.  Besides  a  general  count  in  the  declaration  for 
the  penal  sum  of  the  bond,  the  plaintiff  also  declared  for  forty-five 
monthly  payments  of  thirty  dollars  each. 

April  13,  1883,  a  divorce  a  vinculo  with  a  decree  for  a  gross  sum 
of  $690.00,  as  alimony,  and  the  right  to  resume  her  maiden  name, 
was  granted  to  the  plaintiff,  by  the  court  in  Florida,  where  both 
parties  had  their  domicile. 

Peters,  C.  J.  The  plaintiff  declares  on  the  instrument  adduced 
below,  as  a  penal  bond,  and  also  upon  the  covenants  expressed  in 
it: — "  This  agreement  made  this  twelfth  day  of  September,  1882, 
between  Jonathan  I.  Mackey  and  Alicia  C.  Mackey,  both  of  Florida, 
and  residents  of  Jacksonville  in  said  Florida,  witnesseth  that, 
whereas  my  wife,  Alicia  C.  Mackey,  has  this  day  expressed  her 
desire  to  me  that  a  separation  of  relations  of  man  and  wife  between 
ourselves  might  be  effected,  and  for  good  reasons  known  to  herself, 
be  it  known  that  I  hereby  consent  to  said  separation,  and,  in  con- 
sideration of  my  duty  to  her  as  her  husband,  I  hereby  agree  to  pay 
to  her  monthly,  through  the  Hon.    M.  A.  McLain   of  Jacksonville 


WIFE  S   POST-NUPTIAL   CONTRACTS   WITH    HER   HUSBAND.       I  I  I 

aforesaid,  the  sum  of  thirty  dollars  per  month,  on  the  first  day  of 
each  month,  the  first  installment  or  payment  being  and  to  become 
due  November  i,  1882.  And  I  hereby  bind  myself  to  the  well  and 
true  payment  of  thirty  dollars  aforesaid  monthly,  so  long  as  she  shall 
maintain  good  behavior  and  shall  (not)  have  remarried,  and  this  I 
bind  myself  to  do  under  a  penalty  of  five  thousand  dollars,  to  be  re- 
covered by  her  in  any  court  of  law  by  attachment  upon  my  property 
and  of  myself,  which  sum  of  five  thousand  dollars  aforesaid  I  hereby 
agree  shall  be  considered  a  forfeiture  upon  my  part  to  her.  And 
this  thirty  dollars  per  month  is  in  addition  to  the  one  hundred  and 
fifty  dollars  which  I  have  already  paid  her  at  the  making  of  this 
agreement.  And  this  I  do  freely  and  understandingly. 
"Witness  my  hand  and  seal  this  12th  September,  1882. 

J.  I.  MACKEY,    (seal)." 

The  instrument  was  acknowledged  before  H.  M.  Sylvester,  a 
notary  public,  and  witnessed  by  him. 

The  plaintiff. cannot  recover  on  both  forms  of  declaration. 

She  elects  to  recover  the  penal  sum.  We  have  no  doubt  the  instru- 
ment declared  on  is  a  penal  bond.  It  contains  all  the  elements  of 
one,  though  perhaps  not  expertly  put  together. 

"  If  I  by  deed,  covenant  or  promise  to  do  a  thing,  and  then  say 
to  perform  which  promise  I  bind  myself  in  twenty  pounds,  this  is  a 
good  obligation  in  law."  No  set  form  of  words  is  necessary,  as  see 
numerous  illustrations  in  Bacon's  and  Dane's  Abridgements;  Title, 
Obligation.  We  are  of  opinion  that  the  five  thousand  dollars  are  a 
penalty  and  not  liquidated  damages. 

Passing  the  points  made  on  the  pleadings,  an  important  question 
arises  whether  an  agreement  for  separate  support  is  valid  in  this 
State.  We  do  not  see  why  not.  It  is  said  in  argument  that  there 
has  never  been  a  judicial  decision  in  the  State  touching  the  ques- 
tion. That  indicates  that  the  danger  of  a  frequency  of  such  cases 
must  be  small  indeed. 

Certainly  such  an  agreement  comes  within  the  spirit  of  our  late 
statute  which  provided  for  a  divorce  from  bed  and  board,  the  mari- 
tal tie  remaining.  There  never  has  been  any  judicial  expression  in 
this  State  against  an  agreement  for  separate  support.  The  doctrine 
is  upheld  in  an  early  Massachusetts  case  when  this  State  was  a  part 
of  that  commonwealth,  and  the  precedent  is,  therefore,  as  binding 
here  as  it  is  there. 

In  Page  v.  Trufant,  2  Mass.  159,  decided  in  1806,  it  was  held 
that  "  a  bond  from  the  husband  to  the  father  of  the  wife  for  her 
maintenance,    after  a   voluntary   separation,    is   a   valid    contract." 


IJ2  HUSBAND    AND    WIFE. 

According  to  the  practice  of  that  day,  each  judge  sitting  expressed 
his  opinion  on  the  question,  and  all  favored  the  doctrine.  Parsons, 
C.  J.,  closed  the  discussion  in  these  words:  "  It  in  fact  appears  on 
the  record  that  the  consideration  was  legal  and  meritorious,  as  it 
was  made  to  secure  a  separate  maintenance  for  the  wife,  who  sepa- 
rated from  her  husband  for  their  mutual  comfort,  to  avoid  the  effect 
of  jealousies  and  animosities  that  existed  between  them." 

In  Fox\.  Davis,  113  Mass.  255,  the  doctrine  is  fully  recognized, 
and  was  applied  in  that  case.  Mr.  Bishop,  in  i  Bish.  Mar.  &  Div. 
(6th  ed.),  book  5,  ch.  39,  enumerates  the  states,  citing  their  cases, 
where  the  doctrine  is  either  allowed  or  disallowed;  and  it  appears  to 
have  been  accepted  by  most  of  the  states.  In  England  it  is  estab- 
lished by  act  of  Parliament.  The  condition  on  which  it  rests  is  that 
separation  has  already  taken  place,  or  that  the  agreement  is  made 
in  contemplation  of  an  immediate  separation  which  takes  place  as 
contemplated. 

The  only  objection  to  such  contracts  is  the  encouragement  which 
may  be  afforded  for  married  parties  to  separate  from  each  other. 
We  think  that  amounts  to  little  or  nothing  under  our  liberal  divorce 
system.  Parties  greatly  prefer  divorce  and  alimony  to  mere  separa- 
tion. 

There  may  be  a  distinction  to  be  observed.  Some  contracts  of 
separation  might  offend  public  policy,  and  others  not.  Certainly 
there  are  cases  where  a  wife  would  be  justified  in  separating  from 
her  husband,  and  asking  a  support  from  him  notwithstanding  the 
separation.  There  was  undoubtedly  good  cause  for  separation  in 
the  present  case.  The  evidence  in  the  divorce  case,  to  be  alluded 
to  hereinafter,  which  is  a  part  of  the  record  of  this  case,  shows  that 
the  separation  was  caused  by  cruelties  inflicted  by  him  upon  her. 
He  had  frequently  choked  her  severely,  and  habitually  abused  her 
in  different  ways.  She  proves  that  she  has  been  a  person  of  good 
behavior  since  separation,  as  the  contract  requires  of  her,  and  that 
she  has  not  married  again. 

It  is  contended  for  the  defendant  that  the  agreement  for  separate 
support  was  terminated  by  the  divorce  obtained  by  the  plaintiff  in  a 
court  in  Florida  in  1883.  The  agreement  does  not  provide  for  its 
rescission  or  termination  upon  the  wife's  divorce.  A  failure  of  good 
behavior  or  re-marriage  are  the  only  causes  provided  for  its  termi- 
nation. The  promised  support  would  be  just  as  m)ich  needed  after 
divorce  as  before.  There  is  no  agreement  of  par'-.ies  in  the  provi- 
sions of  the  divorce,  nor  was  there  any  in  the  negotiations  preced- 
mg  divorce,  that  the  contract  should  be  annulled  thereby,  although 


WIFE'S   POST-NUPTIAL   CONTRACTS   WITH   HER   HUSBAND.       II3 

the  defendant' attempted  to  prove  such  an  understanding.  The 
court  could  have  imposed  such  condition,  a  not  uncommon  thing, 
but  failed  to  do  so.  Nor  does  the  decree  of  divorce,  of.  its  own 
force,  have  the  effect  of  terminating  the  prior  agreement  for  sepa- 
rate support.  On  this  point  the  doctrine  is  stated  by  Mr.  Bishop, 
and  the  authorities  fully  cited,  i  Mar.  &  Div.  (6th  ed.),  sec.  637; 
2  same,  sees.  55,  717-722,  741. 

The  counsel  for  defendant  argue  at  great  length  that  an  action 
cannot  be  maintained  on  the  agreement  because  not  of  legal  form  ia 
all  respects,  very  properly  contending  that  all  contracts  made  be- 
tween husband  and  wife  do  not  become  valid  merely  because  the 
marital  tie  has  been  sundered  by  a  decree  of  divorce.  But  all  con- 
tracts of  the  kind  which  equity  would  uphold  before  divorce,  the 
law  recognizes  after  divorce. 

This  agreement  is  substantially  a  legal  agreement,  and  at  all  events 
a  good  equitable  agreement.  Had  the  promise  in  it  been  made  to 
this  plaintiff's  agent  as  her  trustee,  it  would  have  been  a  perfectly 
formal  instrument  at  law.  But  the  promise  is  to  her,  though  the 
delivery  of  the  money  was  to  be  to  the  agent  for  her.  Equity  would 
have  readily  supplied  formality. 

In  the  divorce  proceedings  the  plaintiff  received  allowances 
towards  her  support  of  $690.00,  the  terms  of  divorce  having  been 
arranged  by  the  counsel  of  the  parties.  Here,  then,  was  a  decree  of 
court  for  support,  and  also  an  agreement  of  parties  for  the  same 
purpose.  It  does  not  clearly  appear  what  was  in  the  minds  of  the 
parties  about  a  double  allowance,  but  from  what  was  said  and  done 
in  the  negotiation,  and  because  there  would  be  much  apparent  jus- 
tice in  thus  interpreting  the  transaction,  we  think  we  are  justified  in 
concluding  that  it  was  the  tacit  understanding  of  the  parties  that 
the  allowances,  in  the  divorce  suit,  should  be  a  credit  to  that 
extent  upon  the  amounts  payable  by  the  contract.  Albee  v.  Wyman, 
10  Gray,  222. 

The  result  must  be  that  judgment  is  to  be  entered  for  the  penal 
sum  of  the  bond,  execution  to  issue  for  the  sum  due  on  the  bond 
less  the  credit  of  six  hundred  and  ninety  dollars. 

Defendant  defaulted  for  the  penal  sum. 

Damages  to  be  assessed  at  nisi prius. 

Walton,  Virgin,  Libbey,  Foster  and  Haskell,  J  J.,  concurred. 
[Domestic  Relations  —  8.] 


114  HUSBAND   AND    WIFE. 

McGregor  v.  mcgregor. 

20  Q.   B.   D.  529.— 1888. 

The  plaintiff  and  defendant,  who  were  wife  and  husband,  took  out 
cross-summonses  against  each  other  for  assaults,  but  before  the 
hearing  a  verbal  agreement  was  entered  into  by  them  by  which  the 
summonses  were  to  be  withdrawn,  and  the  plaintiff  and  defendant 
were  to  live  separate,  the  defendant  agreeing  to  pay  the  plaintiff  jQi 
a  week  for  the  maintenance  of  herself  and  children,  and  the  plaintiff 
agreeing  to  indemnify  the  defendant  against  any  debts  which  she 
might  contract.  The  defendant,  the  husband,  having  failed  to  pay 
the  weekly  allowance,  the  wife  issued  a  plaint  against  him  for  ^6, 
being  six  weeks'  arrears  of  the  agreed  weekly  sum  for  maintenance. 
The  learned  County  Court  gave  judgment  for  the  plaintiff.  The 
defendant  appealed. 

A.  L.  Smith,  J.  This  was  an  action  brought  in  the  County  Court 
of  Newcastle-upon-Tyne  to  recover  ^6,  being  six  weeks'  arrears  of 
maintenance  contracted  by  a  husband  to  be  paid  to  his  wife  under 
the  following  circumstances: 

The  plaintiff  and  defendant  before  and  at  the  time  of  the  contract 
hereafter  referred  to  were  and  still  are  husband  and  wife.  On 
several  occasions  prior  to  the  month  of  June,  1886,  the  defendant's 
ill-usage  had  obliged  the  plaintiff  to  apply  to  the  police  for  protection 
against  her  husband,  and  in  the  month  of  June,  1886,  she  was  com- 
pelled to  take  out  a  summons  against  him  for  assault.  The 
defendant  thereupon  took  out  a  cross-summons  against  the  plaintiff. 
On  July  I,  1886,  when  the  summonses  were  about  to  come  on  f«r 
hearing  at  the  police  court,  negotiations  took  place  between  the 
respective  solicitors  of  the  plaintiff  and  defendant,  and  it  was  there- 
upon agreed  between  the  plaintiff  and  the  defendant  "that  they 
should  live  separate  and  apart;  that  the  defendant  should  pay  to  the 
plaintiff  jQi  per  week,  and  that  she  should  therewith  maintain  herself 
and  her  three  children;  that  she  should  indemnify  her  husband 
against  any  debts  contracted  by  her;  and,  further,  that  the  sum- 
monses should  be  withdrawn."  The  above  are  the  findings  of  the 
County  Court  judge.  He  also  found  that  nothing  had  occurred  to 
rescind  or  affect  the  agreement,  and,  as  we  understand,  that  the 
plaintiff  had  done  all  things  on  her  part  to  entitle  her  to  have  it 
carried  out  and  performed  by  the  defendant.  So  matters  stood 
when  the  present  action  was  brought.  The  County  Court  judge 
gave  judgment  for  the  plaintiff,  and  the  defendant  appealed. 


wife's  post-nuptial  contracts  with  her  husband.     115 

It  was  contended  by  Mr.  Walton,  on  the  defendant's  behalf,  that 
notwithstanding  the  contract  existing  as  found  by  the  judge,  no 
action  was  maintainable  by  the  wife  against  the  husband  thereon, 
and  that  at  any  rate  in  an  ordinary  action  in  the  County  Court  upon 
the  agreement,  as  this  was,  no  relief  could  be  given  to  the  wife.  He 
said  that  the  husband  and  wife  being  one,  no  contract  could  be 
entered  into  between  them,  and  consequently  that  the  one  could  not 
sue  the  other  upon  an  alleged  breach  of  what  could  not  exist,  that 
it  was  impossible  for  parties  standing  in  the  relation  of  husband  and 
wife  to  contract  without  the  intervention  of  a  trustee,  and  that  even 
if  he  was  wrong  in  the  above,  the  Statute  of  Frauds  was  an  answer 
to  the  case,  the  contract  being  one  not  to  be  performed  within  the 
space  of  one  year  from  the  making  thereof.  The  County  Court 
judge  came  to  the  conclusion  that  by  reason  of  the  Married  Women's 
Property  Act,  1882  (45  and  46  Vict.  c.  75),  the  plaintiff  was  entitled 
to  contract  as  she  did  with  the  defendant.  It  should  be  pointed  out 
that  he  came  to  this  conclusion  before  the  case  of  Palliser  v.  Gurney 
19  Q.  B.  D.  519,  was  reported.  We  are  unable  to  agree  with  the 
County  Court  judge  in  holding  that  the  Married  Women's  Property 
Act,  1882,  gave  the  power  to  the  wife  to  contract  with  the  husband 
as  she  did  in  this  case,  and  we  are  of  opinion  that  it  did  not;  but 
the  question  still  remains  whether,  under  the  circumstances  found  to 
exist  in  the  present  case,  the  husband  and  wife  had  not  the  power  to 
contract  as  they  did. 

It  seems  to  us  to  be  now  too  late  to  argue,  as  it  was  argued  before 
us,  that  a  husband  and  wife,  in  consideration  of  not  taking  proceed- 
ings, the  one  against  the  other,  for  matrimonial  offences,  cannot 
contract  to  live  separate  and  apart,  and  that  the  courts  will  not 
grant  relief  when  such  a  contract  is  in  fact  made.  In  our  judgment 
the  law  is  that  when  circumstances  exist  between  husband  and  wife 
which  would  or  which  might  give  rise  to  proceedings  by  way  of  suit 
for  matrimonial  offences,  it  is  competent  in  consideration  of  the  one 
not  taking  such  proceedings  against  the  other  for  the  two  to  contract 
to  live  separate  and  apart,  and  that  the  courts  will  enforce  the 
stipulations  of  such  a  contract  when  made.  In  the  case  of  Wilsoti  v. 
Wilson^  I  H.  L.  C.  538,  the  House  of  Lords  decided  that  a  deed  of 
separation  between  husband  and  wife  was  not  against  public  policy, 
whatever  might  have  been  argued  upon  this  point  prior  to  that 
decision.  In  Hunt  v.  Hunt,  4  D.  F.  and  J.  221,  Lord  Westbury,  it 
would  seem,  thought  that  a  husband  and  wife  under  the  circum- 
stances above  mentioned  could  contract,  and  that  such  contract 
ought  to  be  enforceable  by  the  one  against  the  other.  The  president 
of  the  Probate  Division,  Sir  James  Hannen,  in  Marshall  v.  Marshall, 


Il6  HUSBAND    AND   WIFE. 

5   P.  D.  19,  so  held,  as  did  the  late  Master  of  the  Rolls,  Sir  George 
Jessel,  in  Besanix.  Wood,  12  Ch.  D.  605. 

It  seems  to  us  that  the  power  of  the  husband  and  wife  to  contract 
under  the  circumstances  existing  in  the  present  case  is  settled  by 
judicial  authority,  and  the  reasons  for  so  holding  are  so  cogently 
pointed  out  by  Sir  George  Jessel  in  Besantv.  Wood,  12  Ch.  D.  at 
pp.  621  and  622,  that  we  do  not  extract  or  recapitulate  them,  but 
adopt  them  in  this  judgment.  It  follows  from  the  above  that  the 
point  taken  that  there  is  no  trustee  with  whom  the  husband  and 
wife  may  respectively  contract  will  not  avail  the  defendant,  and  that 
the  passage  from  Story's  Equity  Jurisprudence,  sec.  1428,  and  the 
decision  of  Lord  Eldon  in  Lcgard  v.  Johnson,  3  Ves.  352,  are  not 
applicable  to  cases  like  the  present. 

We  wish  also  to  point  out  that  in  Rowley  v.  Rowley,  Law  Rep.  i 
H.  L.,  Sc.  63,  there  was  merely,  as  it  appears,  an  agreement  between 
husband  and  wife,  who  were  then  parties  to  divorce  proceedings,  to 
compromise  the  suit  upon  terms.  The  House  of  Lords  held  such  to 
be  a  valid  binding  agreement  between  the  parties,  and  gave  effect  to 
its  provisions.  There  was  no  trustee  or  anything  of  the  sort  in  the 
case.  If,  then,  an  agreement  between  husband  and  wife  to  com- 
promise a  suit  is  valid  and  binding,  why,  we  would  ask,  is  not  an 
agreement  to  live  separate  and  apart  without  bringing  the  suit  to  be 
valid  and  binding,  the  consideration  being  the  existence  of  facts 
which  would  give  jurisdiction  to  the  court  ?  In  our  opinion  it  is, 
and  such  consideration  existed  in  the  present  case,  namely,  a  charge 
of  cruelty  against  the  husband. 

As  to  the  point  taken  that  this  was  an  ordinary  County  Court 
action,  and  not  a  proceeding  upon  the  equity  side  of  the  court,  it 
should  be  noticed  that  the  effect  of  sees.  24  and  25  of  the  Judicature 
Act,  1873,  and  sees.  89,  90  and  91  of  the  same  act,  are  such  as  to 
give  power  to  the  County  Court  to  grant  relief,  even  though  the 
action  in  form  is  a  common  law  action  for  debt,  in  as  ample  a  manner 
as  if  it  had  been  an  action  in  the  Superior  Court. 

Now  as  to  the  Statute  of  Frauds.  Various  cases  were  cited  in 
argument  upon  the  one  side  and  the  other  as  to  whether  this  agree- 
ment was  or  was  not  within  the  statute  as  being  an  agreement  "not 
to  be  performed  within  the  space  of  one  year  from  the  making 
thereof."  The  County  Court  judge  held  it  not  to  be  within  the 
statute.  But,  be  this  as  it  may,  it  seems  to  us  that  inasmuch  as  this 
is  an  action  to  recover  six  weeks*  arrears  of  maintenance,  the 
plaintiff  in  entitled  to  recover  as  for  money  paid  at  defendant's 
request,  the  consideration  being  executed,  and  that  this  point  was 
expressly  decided  in  plaintiff's  favor  in   the  case  of  Knowlman  v. 


wife's  post-nuptial  contracts  with  her  husband.     117 

Bluett,  Law  Rep.  9  Ex.  307,  in  the  Exchequer  Chamber,  which  is 
really  undistinguishable  from  the  present  case. 

For  the  reasons  above  we  give  judgment  for  the  respondent  and 
with  costs. 

Appeal  dismissed.' 

'  For  an  elaborate  and  extended  historical  review  and  discussion  of  the 
English  and  American  cases  upon  contracts  of  separation  see  the  opinion  of 
Peaslee,  J.,  in  Foote  v.  Nickerson,  70  N.  H.  496,  and  an  article  by  him  on 
"  Separation  Agreements  under  the  English  Law,"  in  15  Harvard  Law  Review, 
638. 


Il8  HUSBAND    AM)    WIFE. 

Wifes  Chattels  Personal. 
CAFFEY  V.  KELLEY. 

Busbee's  Eq.  (N.  C.)  48. — 1852. 

James  McNeelv  died  intestate  in  the  early  part  of  the  year  1849, 
leaving  surviving  him  a  widow,  the  feme  defendant,  since  intermar- 
ried with  the  other  defendant,  and  two  children,  \.\i^  feme  plaintiffs. 
His  widow  administered  on  his  estate,  and  this  bill  is  filed  for  a  set- 
tlement of  her  accounts  as  administratrix. 

At  the  time  of  the  defendant   Isabella's  marriage  with  her  intes- 
tate she  owned  an  undivided  half  of  two  slaves  (Sarah,  aged  about 
five  years,  and  Thompson,  about  five  months),  as  a  tenant  in  com- 
mon  with   her  brother,   William   Mitchell,    which    slaves   they   had 
acquired  by  gift  from  their  father;  and  she  and  her  then  husband 
went  to  live  with  her  mother,  Mrs.  Mitchell,  in  whose  possession 
were  the  said  slaves,  as  well  also  a  quantity  of  furniture  belonging  to 
the  defendant    Isabella.     Whilst  living  with  Mrs.  Mitchell,  it  does 
not  appear   that  the  intestate  ever  exercised  any  positive  acts  of 
ownership  over  the  said  slaves,  nor  that  he  set  up  any  claim  to  them 
by  virtue  of  his  marriage;  but  they  were  simply  understood  in  the 
family  to  be  the  property  of  the  said  Isabella  and  William  as  tenants 
in  common.     Nor  does  it  appear  that  he  asserted  any  ownership  or 
control  over  the  furniture  there,  which  was  his  wife's.     The  intes- 
tate died  within  about  three  months  after  his  marriage  —  having  a 
short  time  before  his  death  removed  to  a  house  of  his  own;    and  on 
removing,  he  did  not  carry  with  him  the  said  slaves,  or  either  of 
them,  nor  the  said  furniture.     The  bill  alleges  that  the  defendant's 
intestate,  by  virtue  of  his  marriage,  and  acts  of  ownership  exercised 
by  him  over  the  said  property,  acquired  title  thereto;  and  prays  that 
the  defendants  may  be  held  to  account  for  the  same  as  part  of  his 
estate,  w^hich  had  not  been  done  by  them  in   their  inventory  and 
accounts  rendered. 

Battle,  J.  There  can  be  no  doubt  that  the  negro  girl  Sarah  and 
the  boy  Thompson  became  the  property  of  the  defendant  Isabella's 
intestate  by  his  intermarriage  with  her.  They  were  at  the  house  of 
the  said  defendant's  mother,  with  whom  she  lived  at  the  time  of  her 
marriage,  were  not  claimed  adversely  by  her  mother  or  any  other 
person,  and,  therefore,  became  the  property  of  her  husband  jure 
viarito  whether  he  ever  took  them  home  or  not.  The  two  cases  of 
Pettijohn  v.  Beasly,  4  Dev.  Rep.  512,  and  Stephens  v.  £>oak,  2  Ire.  Eq. 
Rep.  348,  cited  by  the  plaintiff's  counsel,  show  that  the  wife's  being 


WIPES    PARAPHERNALIA.  II9 

tenant  in  common  with  another  person,  of  the  said  slaves,  made  no 
difference.  The  household  furniture  which  the  said  Isabella  had  at 
her  mother's,  at  the  time  of  her  said  marriage,  became  also  the 
property  of  her  husband,  fur  which  she,  as  his  administratrix,  is 
bound  to  account  as  part  of  his  estate.  But  the  notes  which  she 
held,  payable  to  herself,  having  never  been  collected  by  her  husband, 
survived  to  her;  and  it  is  now  admitted  by  the  plaintiff's  counsel 
that  she  is  not  bound  to  account  for  them. 

The  plaintiffs  are  entitled  to  an  account  from  the  defendants  of 
the  administration  of  the  estate  of  the  intestate  by  the  defendant 
Isabella,  for  which  a  reference  must  be  made  to  the  clerk,  if  the  par- 
ties desire  it. 

Per  Curiam.     Decreed  accordingly. 


Wifes  Paraphernalia. 

HOWARD  V.  MENIFEE. 
5  Pike  (Ark.),  668. — 1845. 

Trover.  Mary  E.  Menifee,  widow,  sued  Howard,  Mason,  and 
Menifee,  administrators  of  Nimrod  Menifee,  deceased.  The  decla- 
ration contained  but  one  count,  for  a  gold  watch,  and  one  Durham 
cow  and  calf.  The  following  facts  are  agreed  upon  by  the  parties, 
and  submitted  to  the  court  sitting  as  a  jury  —  to  wit:  That  the 
plaintiff  and  the  deceased  were  married  in  the  spring  of  1840;  and 
before  marriage  she  was  possessed  in  her  own  right  of  a  gold  watch, 
worth  $150.  After  marriage,  at  request  of  her  husband,  she  gave 
away  the  watch  to  her  sister,  and  received  therefor,  from  her  hus- 
band, the  watch  in  question,  which  she  received  and  retained  as  part 
of  her  paraphernalia  until  after  his  decease,  in  January,  1842.  That 
after  her  marriage  she  received  as  a  present  the  Durham  cow,  to  be 
held  as  her  own  property.  The  cow  brought  forth  the  aforesaid 
calf,  in  the  lifetime  of  the  deceased,  and  both  remained  in  her  pos- 
session as  her  own  property,  until  after  the  husband's  death.  The 
cow  was  taken  possession  of  by  the  plaintiff  in  Kentucky.  After 
death  of  husband,  administration  granted  defendants  in  due  form  of 
law  m  said  county;  who  proceeded  to  administer,  and  took  posses- 
sion of  said  property  before  suit  brought  —  demand  made  and 
refusal. 

That  the  watch  is  wDrth  $150  ;  the  cow  $200;  and  the  calf  $100. 
And  the  defendant  still  refuses  to  give  them  up  to  her. 

That  at  the  time  deceased  gave  the  watch,  he  was  possessed  of 


I20  HUSBAND   AND    WIFE. 

property    worth    $25,000.      That    when    the    defendants    took    the 
goods,  it  was  uncertain  whether  the  estate  was  solvent  or  nut. 

That  the  plaintiff  was  possessed  of  the  goods  sued  for  when 
taken  by  defendants,  and  she  was  in  the  possession,  and  used  the 
watch  from  its  first  coming  to  her  until  taken  by  defendants.  On 
these  facts  the  court  found  for  the  widow. 

Sebastian,  J.     *     *     *     By  the  common  law,   the  husband  be- 
comes entitled  absolutely  to  all  the  wife's  personal  estate,  by  mar- 
riage, and  acquired  the  absolute  dominion  and  right  of  disposing 
of  it.     This  was  the  consequence  of  the  destruction  of  the  separate 
legal  existence  of  the  wife  by  marriage,  by  which  her  rights,  capa- 
city,  and   will   was   henceforth   represented   by   her  husband.     His 
right  was  the  same  to  any  acquisitions  of  the  wife  after  marriage, 
which  enured  to  his  benefit,  and  to  which  his  assent  was  presumed. 
Unquestionably  therefore,  the  property  sued  for  must  be  considered 
at  law  as  belonging  to  the  husband  in  his  lifetime.     There  is,  how- 
ever, a  qualification  of  the  power  of  the  husband  over  such  property 
of  his  wife  as  is  denominated  her  paraphernalia.     This  was  some- 
thing over  and  in  addition  to  dower  at  common  law,  or  the  widow's 
"  reasonable  part  "  of  the  personal  estate  of  the  husband,  and  con- 
sisted of  such  jewels,  articles   of  luxury,  or  of  personal  ornament 
and  decoration  as  were  used  by  the  wife  and  suitable  to  her  condi- 
tion.    Though  the  husband  could  dispose  of  them  in  his  lifetime,  he 
could  not  alienate  them  at  his  death,     i  Peere  Williams,  730.     The 
right  of  the  widow  to  that  portion  of  the  estate  was  absolute  and 
exclusive,  except  as  to  creditors.     She  took  it  as  against  the  heir  or 
legatee,  and  in  the  order  of  paying  the  debts  of  the  estate,  the  per- 
sonal and  then  the  real  estate  was  applied.     For  this  purpose  she 
might  have  the  assets  marshaled  in  a  court  of  equity,  in  exoneration 
of  her  paraphernalia,  or  to   reimburse  the  value  when  it  had  been 
subjected.      Grulson  v.    Corbctt,   3   Atkins,   370;    Tipping  v.    Tipping _^ 
I  Peere  Williams,  729;  2  Peere  Wil'iams,  542.     From  these  and  many 
other  cases  it  is  evident  that  the  widow's  paraphernalia  could  be 
subjected  by  the  creditors  and  that  if  subjected,  equity  gave  her  a 
claim  of  reimbursement  from  the  personalty  and  real  estate.     The 
right  of  the  administrators  to  subject  the  gold  watch  as  assets  for 
the  payment  of  debts  cannot  be  questioned.     Considering  the  facts 
of  the  case,  it  was  certainly  paraphernalia,  and  this  question  is  one 
of  which  the  court  is  to  judge.     A   watch  worn  by  the  widow  has 
been    so  expressly  considered.     2  Eq.  Cas.  Abr.  156.     Her  remedy 
is  in  equity  for  the  value,  should  there  be  assets  after  the  payment 
of  the  debts,  and  no  action  can  be  maintained  in  the  present  form. 
Her  claim  for  the  value  of  .the  other  property  mentioned  rests 


wife's   CHOSES   in   action.  121 

upon  a  different  ground.  Although  it  legally  vested  in  the  husband, 
yet,  as  it  was  the  gift  to  the  wife  from  a  stranger,  it  is  presumed  to 
have  been  for  her  separate  use,  and  equity  regards  it  as  her  separate 
property  and  upholds  the  gift  by  making  the  husband  trustee.  In 
this  case  it  is  clear,  from  well  settled  principles,  that  the  property 
passed  to  the  administrator,  clothed  with  the  trust,  and  he  is  liable  in 
equity  for  the  value.  An  action  at  law  in  this  form  cannot  be  main- 
tained. The  legal  title  would  protect  him  from  damages  for  a  con- 
version, and  as  the  administrator  took,  not  for  the  creditors,  but 
for  the  widow,  he  is  to  be  considered  as  a  trustee  for  her,  and  liable 
for  the  value  of  the  property  converted,  when  the  proper  remedy 
shall  be  resorted  to. 
Judgment  reversed.' 


Wifes  C hoses  in  Action. 

BOOZER  V.  ADDISON. 
2  Rich.   Eq.   (S.   C.)   273. —  1846. 

A  NOTE  was  given  to  Mrs.  Addison,  during  coverture,  for  money, 
the  earnings  of  a  school  kept  by  her. 

The  note  was  delivered  to  the  wife  at  its  execution  and  remained 
in  her  possession  till  the  death  of  the  husband,  and  ever  afterwards, 
until  it  was  settled  and  taken  up  by  the  obligors.  This  settlement 
took  place  the  8th  of  March,  1842,  after  administration  to  the  hus- 
band had  been  granted  to  the  plaintiff. 

The  settlement  was  entirely  between  the  wife  and  Meetze  and 
Bouknight,  two  of  the  makers  of  the  note,  the  administrator  having 
nothing  to  do  with  it;  and  it  was  effected  by  these  obligors  receiving 
and  giving  up  to  Mrs.  Addison  sundry  notes  and  accounts,  which  the 
said  Meetze  alone,  and  the  said  Meetze  and  Bouknight,  as  partners, 
held  against  her  deceased  husband;  to  which  were  added  the  amount 
of  a  note  given  by  said  deceased  to  Mrs.  Arthur;  an  account  against 
him  in  favor  of  Meetze,  Harmon  &  Co.,  and  sundry  small  accounts 
against  Mrs.  Addison  herself:  the  whole  amounting  to  $1,891.13,  at 
the  date  of  the  settlement.  These  were  given  for  the  sealed  note 
held  by  Mrs.  Addison. 

'  "  If  the  husband  deliver  to  his  wife  a  piece  of  cloth  to  make  a  garment,  and 
dies,  albeit  it  was  not  made  into  a  garment  in  the  life  of  the  husband,  yet  the 
wife  shall  have  it,  and  not  the  executor,  inasmuch  as  it  was  delivered  to  her  to 
that  intent.  But  against  the  debtee  of  the  husband  the  wife  shall  have  no  more 
apparel  than  is  convenient.  Mich.  40  &  41  Eliz.  HarweVs  Case."  —  Baron  AND 
Feme,  1738,  p.  79. 


122  HUSBAND    AND    WIFE. 

It  appears  from  the  accounts  of  the  administrator  of  Mr.  Addi- 
son, that  even  if  this  sealed  note  be  regarded  as  parcel  of  his  intes- 
tate's estate,  the  assets  will  fall  far  short  of  satisfying  the  demands 
against  it;  and  that  after  applying  them  to  the  bond  debts,  very 
little,  if  anything,  will  remain  for  the  simple  contract  creditors. 

Under  these  circumstances,  the  creditors  at  large,  and  especially  the 
bond  creditors  of  the  intestate  (all  being  before  the  court  as  parties), 
have  advanced  the  claim  that  the  sealed  note,  held  and  given  up  by 
Mrs.  Addison,  as  already  stated,  was  parcel  of  her  husband's  estate, 
and  should  be  added  to  the  assets ;  and  they  contend  that  in  the 
settlement,  Meetze  and  Bouknight  have  received  a  greater  amount, 
upon  the  demands  which  they  held  on  the  deceased,  than  they  were 
entitled  to  receive  in  a  regular  court  of  administration. 

Appeal  from  the  decree  of  the  chancellor. 

Curia  per  Johnston,  Ch.     The  reasoning  of  the  decree  rests  en 
tirely  upon  the  assumption  that  a  bond   or  sealed   note  given   to  a 
woman  during  coverture  is,  at  law,  the  unqualified  property  of  her 
husband,  and  if  this  assumption  is  sustainable,  I  do  not  perceive  any 
error  in  the  conclusions  which  the  decree  draws  from  it. 

I  assume  this  position  with  the  less  hesitation,  because  it  seemed 
to  be  conceded  in  the  argument,  and  because  it  had  been  conceded 
in  Herbemont  v.  Herbemont,  by  eminent  counsel,  whom  I  endeavored 
to  draw  into  the  discussion  of  it. 

But  it  has  been  discussed  here;  and  I  am  satisfied  that  the  posi- 
tion, so  far  from  being  sustained,  is  contradicted  by  -the  best 
authorities. 

The  result  of  the  examination  is,  that  the  husband's  right  of 
property  is  qualified,  and  dependent  altogether  upon  the  steps  he 
may  take  to  assert  it. 

The  right  of  the  husband  to  the  choses  of  the  wife  may  be  deter- 
mined by  considering  the  remedies  which  the-law  gives  him  in  rela- 
tion to  them;  and  the  incidents  which  pertain  to  the  remedies  he 
may  adopt. 

To  the  choses  belonging  to  the  wife  before  the  marriage,  the  hus- 
band can  lay  no  claim  in  his  own  name,  or  in  his  own  right;  but 
must  join  the  wife  in  any  action  he  may  bring  for  reducing  them 
into  his  possession.  If  he  die  before  judgment,  the  chose  survives 
to  the  wife;  or  if  he  obtain  judgment  and  die  before  it  is  satisfied, 
the  judgment  enures  to  the  wife  as  survivor. 

Upon  choses  accruing  to  the  wife  during  coverture,  the  husband 
may  sue  alone,  or  he  may  concede  to  the  wife  an  interest  in  them, 
and  join  her  in  the  action;  and  if  he  take  no  exclusive  claim  by 
suino-  in  his  own  name,  or  join  his  wife  in  the  action,  but  die  before 


WIFE'S    CHOSES    IN   ACTION.  I23 

judgment,  or  after  judgment  but  before  satisfaction,  the  chose,  or 
the  judgtnent,  as  the  case  may  be,  survives  to  the  wife,  precisely  as 
in  the  case  of  choses  accrued  to  her  before  the  marriage. 

The  only  difference  between  ante-nuptial  and  post-nuptial  choses, 
therefore,  is,  that  the  husband  must  join  the  wife  in  the  action  for 
the  former,  but  has  an  option  whether  to  join  her  or  sue  alone  for 
the  latter.  If  he  has  not  reduced  them  before  his  death,  they  both 
equally  go  to  the  wife  by  survivorship. 

In  this  case,  Mr.  Addison  neither  sued  in  the  one  form  nor  the 
other;  nor  made  any  claim  whatever  to  the  sealed  note,  the  subject 
of  the  decree;  —  and  the  consequence  (if  the  positions  I  have  stated 
be  true)  is,  that  upon  his  death  it  belonged,  in  law,  absolutely  to 
his  wife. 

For  the  truth  of  the  position  I  might  refer  to  two  elementary 
writers,  in  common  use.  Chitty,  speaking  of  choses  accruing  after 
the  coverture,  says  (i  Chit.  PI.  18):  "  Where  the  wife  can  be  con- 
sidered as  the  meritorious  cause  of  action  (as  if  a  bond  or  other 
contract  under  seal  be  made  to  her  separately,  or  with  her  husband); 
or  if,  in  the  case  of  her  personal  labour,  there  be  an  express  promise 
to  her,  or  to  her  and  her  husband,  she  may  join  with  the  husband, 
or  he  may  sue  alone;  and  it  has  been  held,  that  she  may  be  joined 
in  all  cases,  upon  an  express  promise  to  her." 

"The  effect,"  says  he  (id.  20)  "of  joining  the  wife  in  an 
action,  when  the  husband  might  sue  alone,  is,  that  if  the  husband 
die  whilst  it  is  pending,  or  after  judgment,  and  before  it  is  satisfied, 
the  interest  in  the  cause  of  action  will  survive  to  the  wife,  and  not 
to  the  executor  of  the  husband;  though,  if  he  sued  alone,  she  would 
have  had  no  interest." 

Mr.  Stephens  (i  N.  P.  744)  lays  down  the  same  positions. 

Premising  that  where  the  husband  and  wife  join  in  an  action, 
founded  upon  the  services,  etc.,  of  the  wife,  and  there  is  no  express 
promise  in  the  case,  it  must  appear  in  the  declaration  that  the  ser- 
vices were  rendered  by  her,  so  as  to  show  that  she  is  the  meritorious 
cause  of  the  suit;  but  that  if  the  action  is  founded  on  a  note  or  bond 
to  her,  or  upon  any  other  instrument  importing  consideration,  no 
such  averment  is  necessary,  i  H.  Bl.  144;  2  M.  &  S.  393.  I  pro- 
ceed to  show  from  a  few  cases,  promiscuously  taken  from  both  the 
law  and  equity  jurisdictions,  that  the  elementary  writers  already 
quoted  are  borne  out  in  the  propositions  laid  down  by  them. 

It  is  true  that  there  are  a  few  cases  (Bunb.  188;  2  Eq.  Ab.  i; 
2  Bl.  R.  1236)  to  the  contrary,  but  the  current  of  cases,  especially 
those  of  later  dates,  are  with  them.  \^Here  follows  a  statement  of  the 
following  cases :  Brashford  v.  Buckingham,  Cro.  Jac.  77;  Philliskirkw. 


124  HUSBAND   AND  WIFE. 

Pluckwell,   2   M.  &:   S.    393;  Oglander  v.  Baston^    i   Ver.    396;  Sc/ivon- 

maker  v.  Elmendorf,  10  Johns.  R.  49;   Coppin  v.  ,  2  P.  Wms.  496; 

Nash  V.  Nash,  2  Mad.  R.  411,  first  Am.  ed.] 

It  seems  to  me  that  these  cases  are  sufficient  to  settle  the  question 
as  to  the  right  at  law. 

Still  it  may  be  said,  that  though  the  doctrine  be  as  stated,  as  be- 
tween the  husband,  or  his  representatives,  and  the  wife,  it  must  be 
otherwise  as  between  the  latter  and  the  creditors  of  the  former. 
That  it  may  lead  to  fraud:  —  for  if  a  bond  or  note,  executed  in  the 
name  of  the  wife,  be  allowed  to  survive  to  her,  it  will  be  easy  for  the 
husband,  when  the  consideration  really  proceeds  from  him,  and  not 
from  the  wife,  to  take  the  obligation  in  her  name,  and  thus  secure  a 
benefit  to  her  at  the  expense  of  his  creditors.  But  there  is  no  such 
danger.  If  the  chose  arises  in  truth,  as  in  this  instance,  from  the 
wife  as  the  meritorious  cause,  there  is  no  fraud  in  allowing  her  the 
benefit  of  it;  and  if  it  arises  from  the  funds  or  property  of  the  hus- 
band, the  proof  of  that  fact  will  demonstrate  the  fraud  and  prevent 
its  being  carried  into  effect. 

It  is  ordered,  that  the  decree  be  reversed,  and  the  bill  pertaining 
to  this  matter,  as  against  the  defendants,  Meetze,  Bouknight  and 
Scott,  dismissed.  The  costs  to  be  paid  out  of  the  estate  of  Mr. 
Addison  before  distribution. 

Johnston  and  Dunkin,  CC,  concurred. 


CAPLINGER  V.  SULLIVAN. 

2  Humph.    (Tp;nn.)   548. —  1841. 

Reese,  J.  This  is  an  action  of  detinue  for  slaves.  The  property 
in  question  was  bequeathed  by  the  last  will  and  testament  of  Boling 
Felts  to  his  wife,  for  life,  and  after  her  death  to  Ann  Sullivan,  the 
plaintiff  in  this  suit,  then  the  wife  of  William  Sullivan,  and  the  said 
William  was  appointed  executor  of  the  will.  He  duly  took  upon 
himself  that  office,  and  in  1819,  purchased  of  Mary  Felts,  testator's 
widow,  the  property  in  question,  for  the  sum  of  one  hundred  dollars 
per  annum,  to  be  paid  to  her  during  her  life. 

In  1830,  Mary  Felts  acknowledged  in  writing  her  reception  of  a 
sum  in  gross,  from  William  Sullivan,  in  satisfaction  of  her  annuity. 
Subsequently,  in  .  the  same  year,  William  Sullivan  conveyed  the 
slaves,  for  a  valuable  consideration,  to  Caplinger,  the  defendant, 
and  put  him  in  possession  thereof,  he  himself  having  been  pos- 
sessed of  them  from  the  time  of  his  purchase  in  1819.  William 
Sullivan  died  in  1835.     Mary  Felts,  the  owner  of  the  slaves  for  life, 


WIFE'S    CHOSES    IN   ACTION.  12$ 

and  Ann  Sullivan,  the  wife  of  William,  to  whom  they  were  limited  in 
remainder,  surviving.     Mary  Felts  died  in  1838. 

These  facts,  in  the  Circuit  Court,  were  found  by  the  jury  in  a 
special  verdict,  and  judgment  thereon  was  pronounced  by  his  honor 
the  circuit  judge  in  favor  of  Ann  Sullivan,  the  plaintiff,  and  the  de- 
fendant, Caplinger,  has  appealed  in  error  to  this  court. 

Justice  Story,  in  his  Commentaries  on  Equity,  paragraph  1413, 
states  it  as  a  principle,  that,  "  no  assignment  by  the  husband,  of 
reversionary  choses  in  action,  or  other  reversionary  equitable  inter- 
ests of  the  wife,  even  with  her  consent  and  joining  in  the  assign- 
ment, will  exclude  her  rights  of  survivorship."  The  assignment, 
he  adds,  "  is  not,  and  cannot  from  the  nature  of  the  thing,  amount 
to  a  reduction  into  possession  of  such  reversionary  interests." 

The  general  principle  thus  laid  down  we  find  to  be  abundantly 
sustained  by  authority,  and  particularly  by  the  leading  cases  on  the 
subject,  Piirdew  v.  J^ackson,  i  Russ.  i,  determined  by  Sir  Thomas 
Plummer,  Master  of  the  Rolls,  and  the  case  of  Hoiiner  v.  Morton^  3 
Russ.  65,  determined  by  Lord  Chancellor  Lyndhurst,  15th  April,  1827. 

The  point  settled  in  the  last  case  is,  that  where  husband  and  wife 
assign  to  a  purchaser,  for  valuable  consideration,  a  share  of  an  ascer- 
tained fund,  in  which  the  wife  has  a  vested  interest  in  remainder, 
expectant  on  the  death  of  a  tenant  for  life,  and  both  the  wife  and 
tenant  for  life  outlive  the  husband  the  wife  is  entitled,  by  right  of 
survivorship,  to  claim  the  whole  of  the  shares  of  the  fund,  against 
such  particular  assignee  for  valuable  consideration.  The  Lord 
Chancellor  refers  to  the  principal  cases  relied  on,  on  either  side, 
and  particularly  to  the  case  before  Sir  Thomas  Plummer,  and  con- 
cludes, after  considering  the  question  in  all  its  bearings,  and  the 
authorities  and  principles  on  the  one  side,  and  on  the  other,  that  the 
judgment  of  the  Master  of  the  Rolls  in  Piirdew  v.  Jackson  was 
right,  and  that  the  husband  dying  while  the  wife's  interests  con- 
tinue reversionary,  had  no  power  to  make  an  assignment  of  property 
of  this  description,  which  shall  be  valid,  against  the  wife's  surviving. 

But  it  is  urged  on  behalf  of  the  defendant,  in  this  case,  that  the 
husband  did  not  die  while  the  wife's  interests  in  the  property  con- 
tinued reversionary;  for  it  is  said  that  the  reversionary  character  of 
the  interest  was  terminated  by  the  purchase  on  the  part  of  the 
husband  from  the  tenant  for  life.  But  this  we  think  is  not  so. 
For  if  after  this  purchase,  the  husband  had  died  without  assignment, 
can  it  be  doubted,  that  the  personal  representative  of  the  husband 
would  have  been  entitled,  during  the  existence  of  the  tenant  for 
life,  to  the  property  in  question,  and  after  that  that  the  wife  would 
have  been  entitled  by  survivorship. 


126  HUSBAND   AND    WIFE. 

The  wife  had  no  interest  in  the  husband's  purchase,  he  stood  in 
the  place  of  tenant  for  life.  The  tenancy  for  life  still  continued, 
and  the  reversionary  interest  unaffected  by  such  purchase,  could  not 
commence  in  possession  till  the  life  estate  terminated.  The  hus- 
band possessed  the  slaves,  but  he  possessed  them  as  purchaser,  not 
as  husband,  and  his  title  and  possession  were  of,  and  commensu- 
rate with,  the  life  estate,  and  that  only.  Here  was  no  merger  of 
estates.  The  life  estate  belonged  to  the  husband  solely  and  abso- 
lutely as  purchaser;  the  reversionary  interest  or  remainder,  to 
husband  and  wife,  in  right  of  the  wife,  and  liable  to- become  his 
absolutely  by  survivorship.  If  the  husband,  having  assigned,  had 
continued  to  live  till  the  lifetime  estate  had  terminated,  then,  in- 
deed, as  a  court  of  chancery  views  such  assignments  as  an  agree- 
ment to  assign  when  in  his  power  and  considers  that  also  as  done 
which  ought  to  have  been  done,  the  assignee,  for  a  valuable  considera- 
tion, would,  in  equity,  have  been  entitled  to  the  property. 

We  have  been  referred  by  defendant's  counsel  to  the  case  of 
Finckard\.  Smith  and  Wife,  Littell's  Select  Cases,  331,  as  bearing 
on  this  question.  The  court,  in  that  case,  seemed  to  be  of  opinion 
that  a  vested  remainder  in  a  slave,  occurring  to  the  wife  during 
coverture,  so  far  vested  in  the  husband,  as  that  he  would  be  en- 
titled to  recover  the  same,  without  administration  on  the  wife's 
estate.  But  they  also  state  it  as  their  opinion  that  it  does  not  so 
vest  as  to  defeat  the  wife  of  her  right  by  survivorship.  The  case, 
whether  properly  determined  or  not,  can,  therefore,  be  no  authority 
bearing  upon  the  case  at  the  bar. 

Upon  the  whole,  we  are  of  opinion,  that  the  Circuit  Court  pro- 
nounced the  proper  judgment  upon  the  special  verdict,  and  we, 
therefore,  affirm  that  judgment. 


HART  V.   LEETE. 


104  Mo.   315. —  1891. 

Black,  J.  The  piaintiff,  as  purchaser  of  real  estate  at  an  execu- 
tion sale,  brought  this  suit  to  set  aside  a  deed  from  defendant,  James 
M.  Leete  to  defendant  Simmons,  conveying  the  property  in  dispute 
to  Simmons  in  trust  for  the  use  of  the  wife  of  said  Leete,  on  the 
ground  that  the  deed  was  made  in  fraud  of  creditors.  The  record  is 
lengthy,  and  it  is  deemed  advisable  to  here  state  the  case  in  its  out- 
line, leaving  the  details  of  the  evidence  to  be  narrated  in  connection 
with  the  question  to  which  it  relates. 

Tames   Harrison  died    leaving  a  large  estate,   and,   by   his  will, 


WIFE'S   CHOSES   IN   ACTION.  I27 

which  was  probated  in  1870,  devised  one-fifth  of  his  estate  to  his 
daughter,  Cordelia.  On  the  twenty-eighth  of  June,  187 1,  she  mar- 
ried the  defendant,  James  M.  Leete,  who  was  a  physician,  having 
property  of  no  greater  value  than  $3,000,  and  an  income  of 
not  exceeding  $1,000  per  annum.  Edwin  Harrison  was  executor 
of  the  will,  and,  as  such,  paid  over  to  Dr.  Leete,  from  time 
to  time,  from  187 1  to  1884,  not  less  than  $250,000.  In  addition  to 
this  he  turned  over  to  Mrs.  Leete,  on  the  29th  of  September,  1876, 
stocks  and  bonds  amounting,  face  value,  to  $263,740. 

Dr.  Leete  purchased  the  property  now  in  question  in  September, 
1873,  and  took  the  title  in  his  own  name.  He  paid  for  it  $12,000, 
one-fifth  in  cash  and  the  residue  by  his  individual  notes  due  in  one, 
two,  three  and  four  years,  and  secured  the  same  by  a  deed  of  trust 
on  the  property.  The  cash  payment  was  made  by  a  cheque  of  the 
executor  payable  to  Dr.  Leete  and  charged  to  Mrs.  Leete,  on  account 
of  her  distributive  share  in  her  father's  estate.  The  subsequent  pay- 
ments were  made  from  the  funds  received  from  the  executor. 

Dr.  Leete  built  a  residence  upon  the  property  at  a  cost  of  $40,000, 
and  paid  for  the  same  from  August,  1875,  to  August,  1876,  by 
cheques  drawn  on  funds  received  by  him  from  the  executor  on  ac- 
count of  his  wife's  inheritance.  He  was  a  stockholder  and  officer  of 
the  Harrison  Wire  Company,  and  he  endorsed  the  paper  of  that 
company  to  a  large  amount.  On  the  12th  of  December,  1883,  the 
Harrison  Wire  Company  made  its  note  for  $25, 000  due  in  six  months, 
payable  to  Dr.  Leete,  which  was  endorsed  by  him.  Augustus  B. 
Hart  purchased  the  note,  and  when  it  became  due  it  was  renewed 
for  five  days.  It  remained  unpaid  on  the  9th  of  December,  1884,  at 
which  time  Dr.  Leete  owed  other  large  sums  of  money,  aod  he  and 
the  Harrison  Wire  Company  were  then  insolvent.  On  that  day  he 
made  the  deed  now  in  question  to  Simmons,  conveying  the  property 
in  suit  to  Simmons  in  trust  for  Mrs.  Leete.  The  deed  professes  on 
its  face  to  be  made  in  consideration  of  $5,  and  for  the  further  con- 
sideration that  the  money  which  paid  for  the  property  and  the 
improvements  "  was  money,  income,  increase  or  profits  of  personal 
property  belonging  to  "  Mrs.  Leete. 

Augustus  B.  Hart  recovered  judgment  on  the  note  against  Leete 
in  January,  1885,  under  which  the  property  was  sold,  and  the  plain- 
tiff, Oliver  A.  Hart,  became  the  purchaser  in  March  of  the  same 
year.  The  defendants  caused  notice  to  be  promulgated  at  the 
sheriff's  sale  to  the  effect  that  the  property  belonged  to  Mrs.  Cor- 
delia Leete. 

The  case  was  heard  by  a  referee,  who  made  report  to  the  effect 
that  the  deed  should  be  set  aside,  because  made  in  fraud  of  credit- 


128  HUSBAND   AND   WIFE. 

ors  to  the  extent  of  six  hundred  and  twenty-four  thousandths  of  the 
whole  title.  Numerous  exceptions  were  filed  to  the  report  by  both 
sides,  but  they  were  all  overruled,  and  the  report  confirmed,  and  both 
sides  appealed  to  this  court. 

It  becomes  necessary  to  determine  whether  Dr.  Leete  became  tlie 
owner  of  the  money  received  by  him  prior  to  March  25th,  1875,  and 
this  depends  upon  the  question  whether  he  reduced  the  same  to  his 
possession. 

It  is  often  said  that  by  the  common  law  the  marriage  vests  abso- 
lutely in  the  husband  all  articles  of  personal  property  then  owned  or 
thereafter  acquired  by  the  wife;  but  under  the  influence  of  equity 
rules  it  is  well  settled  that  the  husband  may  waive  his  right  to  his 
wife's  personal  property,  and  permit  her  to  retain  the  same  free 
from  any  claim  on  his  part.  Botts  v.  Gaoc/i,  97  Mo.  88,  and  cases 
cited.  But  the  wife's  choses  in  action  stand  on  still  a  different  foot- 
ing. They  do  not  in  any  case  vest  in  the  husband  by  virtue  of  the 
marriage  alone;  but  he  has  the  right  and  power  to  reduce  them  to 
his  possession,  and  when  this  is  done,  and  not  before,  he  becomes 
the  owner  of  them.  A  legacy  or  a  distributive  share  accruing  to  the 
wife  is  a  chose  in  action.  Leakey  v.  Matipln,  10  Mo.  368;  2  Kent 
(13th  ed.),  135.  As  a  general  rule  the  receipt  by  the  husband  of  the 
money  due  upon  the  wife's  chose  in  action  will  constitute  a  reduc- 
tion to  his  possession,  i  Bishop  on  Married  Women,  sec.  114. 
But  he  may  collect  and  invest  the  money  for  her,  and  if  he  receives 
the  money  for  her  and  promise  to  account  to  her  or  her  trustee 
therefor,  she  may  claim  the*  fund  as  her  own,  even  as  against  his 
creditors;  for  an  appropriation  so  made  would  not  amount  to  an 
appropriation  to  his  own  use.  Terry  v.  Wilson,  63  Mo.  493.  While 
there  is  some  diversity  of  opinion  concerning  the  intent  of  the  hus- 
band, the  better  view,  according  to  Bishop,  is  that  the  mere  receiv- 
ing, by  the  husband,  of  the  wife's  property  will  not  be  such  a  reduc- 
tion of  it  to  his  possession  as  will  affect  the  wife's  survivorship,  or 
her  equity  to  a  settlement.  To  have  that  effect  he  must  receive  it 
solely  in  the  exercise  of  his  marital  right,  and  for  the  purpose  of 
appropriating  it  to  his  own  use.  Bishop  on  Married  Women,  sec. 
119.  When  the  husband  collects  the  money  due  upon  his  wife's 
chose  in  action,  not  as  agent  or  trustee,  but  for  the  purpose  of  de- 
voting it  to  his  own  use,  there  can  be  no  doubt  but  this  constitutes 
a  reduction  to  his  possession,  and  the  money  then  becomes  his  own 
and  liable  for  his  debts. 

Now  the  principal  claim  on  the  part  of  the  defendant  is  that  Dr. 
Leete,  in  collecting  these  moneys,  and  in  investing  the  same,  acted 


WIFE  S    CHOSES    IN   ACTION.  T2Q 

for  and  as  the  agent  of  his  wife,  and  hence  the  money  at  all  times 
continued  to  be  her  property.  It  appears  he  received  various 
amounts  of  money  from  the  executor  during  what  is  called  each 
settlement  year,  and  at  the  close  of  each  year,  when  it  became  neces- 
sary for  the  executor  to  make  settlement  with  the  probate  court, 
these  various  payments  were  consolidated,  and  he  and  his  wife  joined 
in  one  receipt  to  the  executor.  As  to  the  disposition  of  the 
moneys,  the  referee  made  the  following  findings,  which  are  well 
supported  by  the  evidence:  "Upon  the  receipt  of  these  moneys 
Dr.  Leete  apparently  used  them  as  if  they  were  his  own.  Some  he 
used  for  personal  expenses  and  the  support  of  his  family.  He 
invested  portions  of  them  on  his  own  account,  or  name,  in  securities. 
Collected  and  used  the  earnings  and  sold  the  securities  and  used 
the  proceeds.  He  invested  some  of  these  moneys  in  various  busi- 
ness companies,  in  his  own  name,  and  in  some  instances  thus  lost 
them.  If  the  moneys  were  idle  he  kept  them  deposited  in  bank,  in 
his  own  name,  and  he  purchased  the  land  here  in  question  in  his  own 
name,  and  used  some  of  these  moneys  towards  paying  for  it  and 
erecting  the  dwelling  thereon.  He  did  nothing  in  the  name  of  his 
wife,  nor  had  he  any  agreement  with  her  as  to  the  use  of  the 
moneys,  but  continued  his  operations  in  much  the  manner  indicated, 
until  the  period  and  time  he  conveyed  this  property  to  his  wife,  as 
trustee,  a  period  of  ten  or  eleven  years." 

It  is  very  true  Dr.  Leete  testified  that  he  received  the  moneys 
and  invested  them  as  the  agent  of  his  wife,  and  that  he  never  in- 
tended to  make  them  his  own  property,  and  this  evidence  must  be 
considered  with  the  other  evidence  in  the  case.  Still  the  uncon- 
tradicted evidence  is  that  he  collected  the  moneys,  made  no  report 
to  his  wife,  and  was  asked  to  make  none;  kept  no  separate  account 
of  the  funds  he  thus  received,  purchased  stock  in  various  corpora- 
tions in  his  own  name,  and  had  a  financial  standing  in  the  commu- 
nity where  he  resided.  We  have  read  and  re-read  the  evidence, 
and  we  do  not  find  a  single  circumstance  to  support  the  assertion 
that  he  acted  for  and  as  the  agent  of  his  wife.  The  long  series  of 
acts  show,  and  they  show  conclusively,  that  he  received  the  funds 
and  appropriated  them  by  virtue  of  his  marital  right,  and  the  claim 
now  made  that  he  was  all  the  while  acting  as  the  agent  and  trustee 
of  his  wife  must  be  an  afterthought.  That  he  reduced  the  $117,000 
to  his  own  use  is  too  clear  to  admit  of  any  doubt.  The  property  in 
question  belongs  to  Dr.  Leete  to  the  extent  that  the  land  and 
improvements  were  paid  for  out  of  the  moneys  so  appropriated  to 

his  own  use. 

******** 
[Domestic  Relations  —  9.] 


I30  HUSBAND    AND   WIFE. 

Wifes  Chattels  Real. 
RILEY'S  ADMINISTRATOR  v.  RILEY. 

19  N.  J.   Eq.   229.  — 1868. 

The  Chancellor.  The  complainant,  as  administrator  of  the 
estate  of  Ann  Riley,  calls  upon  the  defendant  to  account  for  the 
rents  of  certain  leasehold  property  in  Jersey  City,  held  by  Ann  Riley 
at  her  death,  and  which  the  defendant  has  received;  he  claims  to 
have  received  them  in  his  own  right,  and  that  they  are  legally  his 
own,  by  a  bequest  in  the  will  of  Miles  Riley,  the  husband  of  Ann. 
Ann  Riley  became  entitled  to  the  leasehold  estate  by  the  will  of  her 
former  husband,  James  Cummings,  who  bequeathed  to  her  one- 
third  of  it,  and  a  right  of  support  out  of  the  other  two-thirds.  After 
Cummings'  death  she  was  married  to  Miles  Riley,  who  died  in  her 
lifetime,  without  having  in  any  way  aliened  or  disposed  of  the  lease- 
hold estate,  but  by  his  will  gave  it  to  his  brother  Owen  Riley,  the 
defendant. 

The  defendant  claims  that  Miles  Riley  in  his  lifetime  had  erected 
buildings  upon  this  property,  and  collected  the  rents,  and  by  this  he 
had  shown  his  intention  to  appropriate  this  leasehold,  which,  as  a 
chattel  real  of  his  wife,  he  had  a  right  to  reduce  into  possession  and 
appropriate. 

The  evidence  shows  that  in  the  life  of  Miles  Riley,  and  after 
his  marriage  with  Ann  Cummings,  buildings  were  erected  on  the 
premises;  but  the  clear  weight  of  evidence  is,  that  they  were  erected 
by  his  wife,  and  paid  for  out  of  the  rents  of  the  whole  premises, 
which  the  executors  of  Cummings  permitted  her  to  receive  and  col- 
lect for  that  purpose.  Miles  Riley  appears  to  have  aided  by  per- 
forming some  work  in  the  erection  of  the  buildings,  and  to  have 
contributed  a  few  dollars  towards  the  erection. 

The  only  question  that  arises  is,  whether  these  leasehold  premises 
were  disposed  of,  or  appropriated  by  Miles  Riley  in  his  lifetime,  so 
as  to  vest  the  property  in  him,  and  take  away  the  right  of  his  wife 
after  his  death.  Miles  Riley  died  in  184S,  and  this  question  must 
be  decided  by  the  law  as  it  stood  then.  By  that  law,  the  personal 
property  of  a  woman,  upon  her  marriage,  vested  in  her  husband; 
her  goods  and  chattels  absolutely;  he  had  the  right  to  the  posses- 
sion of  her  choses  in  action,  and  of  her  chattels  real,  and  could  at 
any  time  dispose  of,  collect,  or  sell  them,  and  by  this  the  proceeds 
of  them  became  his  absolutely;  but  if  he  did  not  reduce  them  to 
possession  by  disposing  of  them,  or  some  equivalent  act,  they  sur- 


wife's  real  property  in  general.       131 

vived  to  her,  and  would  not  pass  by  his  will,  which  did  not  take 
effect  until  his  death,  when  the  title  had  become  vested  in  her  by 
the  survivorship. 

Taking  possession,  collecting  the  rents,  interest  or  dividends 
has  never  been  held  to  be  a  disposition  of  the  property,  or  a  reduc- 
tion into  possession,  so  as  to  take  away  the  wife's  right  of  survivor- 
ship. Nor  has  it  ever  been  held  that  the  erection  of  buildings  by 
the  husband  on  the  leasehold  lands  of  the  wife  was  such  disposition 
of  them  as  to  take  away  her  right.  An  actual  disposition  by  sale, 
lease  or  mortgage,  or  contract  for  such  object,  has  always  been 
required  to  take  away  the  wife's  right  by  survivorship.  A  mortgage 
or  a  sale  of  part,  or  a  lease  of  part,  or  for  a  less  term  only  bars  the 
wife  pro  tanto ;  her  right  of  survivorship  remains  in  the  equity  of 
redemption,  and  the  residue  of  the  premises  or  term. 

In  this  case  no  interest  in  the  premises  passed  by  the  will  of  Miles 
Riley;  the  whole  survived  to  Ann  Riley,  and  her  administrator  is 
entitled  to  the  fund. 


Wifes  Real  Property  hi  General. 
BABB  V.  PERLEY. 

I   Me.  6. —  1820. 

This  was  an  action  of  trespass  on  the  case  for  an  injury  done  to 
the  interest  of  the  wife,  by  cutting  down  and  carrying  away  sundry 
trees  standing  on  land  of  which  the  plaintiffs  alleged  themselves  to 
be  seized  in  right  of  the  wife.  At  the  trial  of  this  action  before 
Wilde,  J.,  at  the  last  October  term  in  this  county,  it  was  admitted 
by  the  defendant  that  the  plaintiffs  were  seized  as  alleged  in  their 
writ,  until  he,  being  a  judgment  creditor  of  the  husband,  extended 
an  execution  in  his  own  favor  on  the  locus  in  quo,  as  the  estate  of  the 
husband;  and  it  appeared  that  this  extent  was  made  with  the  for- 
malities of  law.  After  the  extent,  the  defendant  cut  down  and 
carried  away,  and  sold  about  fifty  cords  of  wood  growing  on  the  lot 
in  question.  Upon  this  evidence  the  judge  instructed  the  jury  that 
by  virtue  of  the  extent  of  the  execution  the  defendant  acquired  all 
the  title  of  the  husband  to  the  locus  in  quo,  and  that  the  cutting 
and  selling  of  the  wood  was  fully  justified;  and  a  verdict  was  there- 
upon returned  for  the  defendant,  subject  to  the  opinion  of  the  court 
upon  the  correctness  of  those  instructions. 

Mellen,  C.  J.  The  facts  in  this  case  present  some  questions, 
respecting  which  judges  and  counselors  have   taken  different  views. 


132  HUSBAND    AND    WIFE. 

They  appear  somewhat  novel  and  we  do  not  find  that  they  have 
received  any  express  judicial  decision.  We  have  examined  the 
cause  with  much  attention,  and  after  some  vibration  of  opinion  have 
at  length  arrived  at  a  result  with  which  we  are  all  satisfied. 

The  facts  reported  by  the  judge  who  sat  in  the  trial  of  the  cause 
led  the  counsel,  in  the  argument,  to  the  consideration  of  two  ques- 
tions; and  it  may  be  convenient  for  us  to  pursue  the  same  course. 

The  first  inquiry  is,  "  What  were  the  rights  and  liabilities  of  Babb 
in  virtue  of  his  acquiring  a  freehold  estate  in  right  of  his  wife  in  the 
land  in  question,  and  in  consequence  of  his  destroying  or  selling  and 
disposing  of  the  wood  or  timber  growing  on  the  land  ?  " 

The  second  inquiry  is,  "  What  are  the  rights  and  liabilities  of  Per- 
ley  as  assignee  of  said  Babb  and  owner  of  his  former  interest  in 
the  land,  in  virtue  of  his  ownership  and  consequent  upon  his  destroy- 
ing or  selling  and  disposing  of  said  wood  and  timber  ?  " 

With  respect  to  the  first  question,  it  may  now  be  observed  that  the 
land  on  which  the  trees  were  cut  by  Perley  is  admitted  to  be  a 
wood  lot,  uncultivated,  and  in  a  state  of  nature. 

When  a  man  marries  a  woman  who  is  seized  in  fee  of  lands,  he 
thereby  gains  a  freehold  in  her  right.  He  acquires  a  life  estate.  It 
will  be  an  estate  for  the  life  of  the  wife  only  —  (unless  he  be  tenant 
by  the  curtesy)  in  case  he  should  survive  her;  or  an  estate  for  his 
own  life,  in  case  she  should  survive  him;  because  the  law  presumes 
that  the  coverture  will  continue  until  the  death  of  one  of  the  par- 
ties. "  He  does  not  become,  by  the  marriage,  absolute  proprie- 
tor of  the  inheritance;  but  as  the  governor  of  the  family,  is  so  far 
the  master  of  it,  as  to  receive  the  profits  of  it  during  her  life." 
Co.  Litt.  351;  2  Bl.  Com.  433;  Barber  v.  Root^  10  Mass.  261. 
These  profits  —  this  usufruct  of  the  wife's  lands,  the  husband  may 
dispose  of  according  to  his  pleasure,  without  or  against  her  consent. 

For  any  injury  to  the  annual  profits,  or  for  taking  away  the  emble- 
ments, the  husband  may  maintain  an  action  against  the  wrongdoer, 
in  his  own  name,  without  joining  the  wife.  But  for  an  injury  to  the 
inheritance,  as  for  cutting  down  the  timber  growing  on  the  wife's 
land,  he  cannot  maintain  such  action  without  joining  the  wife;  for 
the  damages  will  survive  to  her.  3  Lev.  403;  Vern.  82;  Reeves, 
Dom.  Rel.  130,  133. 

These  cases  mark  the  distinction  between  the  rights  of  the  hus- 
band and  those  of  the  wife  in  relation  to  the  lands  of  which  they  are 
seized  in  her  right.  If,  then,  the  husband  has  a  right  only  to  the 
usufruct  or  profits  of  his  wife's  lands,  the  question  is,  what  were  the 
rights  which  Babb  had  in  the  land  above  mentioned,  and  what  con- 
trol over  it  ?     Could  this  land  yield  any  profits,  according  to  the 


wife's  real  property  in  general.  133 

legal  signification  of  the  term  ?  Some  light  may  be  thrown  upon 
this  point  by  considering  the  principles  of  the  decision  in  the  case  of 
Conner  v.  Shet>pard,  15  Mass.  164.  In  this  case  the  court  decided 
that  a  widow  could  not  by  law  be  endowed  by  lands  in  a  wild  and 
uncultivated  state;  and  the  reason  assigned  by  the  court  is,  that 
"  of  a  lot  of  wild  land,  unconnected  with  a  cultivated  farm,  there 
are  no  rents  and  profits. ' '  Again  they  say,  ' '  In  many  instances  the  in- 
heritance would  be  prejudiced  without  any  actual  advantage  to  the 
widow  to  whom  the  dower  might  be  assigned.  For,  according  to 
the  principles  of  the  common  law,  her  estate  would  be  forfeited  if  she 
were  to  cut  down  any  trees  valuable  as  timber.  It  would  seem,  too, 
that  the  mere  change  of  the  property  from  wilderness  to  arable 
land,  or  pasture,  might  be  considered  as  waste."  "  The  very  clearing 
of  the  land  —  would  be  actually,  as  well  as  technically,  waste  of  the 
inheritance." 

In  the  case  oi  Sargeant  et  al.  v.  Towne,  10  Mass.  303,  the  court 
determined  that  a  devise  of  wild  and  uncultivated  land  carried  a  fee 
without  any  words  of  inheritance;  because  a  life  estate  would  be  of 
no  use  to  the  devisee.  He  would  not,  even  if  he  could  without 
committing  waste,  undertake  the  cultivation  of  the  land  devised. 

It  would  seem  from  the  authorities  above  cited,  that  the  plaintiff 
Babb,  prior  to  the  extent  of  Perley's  execution,  had  no  right  to  cut 
down  the  timber  on  his  wife's  land,  or  to  do  those  acts  which,  in  the 
case  of  a  tenant  for  life,  or  years,  would  be  waste.  It  is  true  Babb 
had  the  power  to  do  it-  and  so  he  had  the  power  to  pull  down  a  house, 
had  there  been  one  on  the  land;  ox  to  beat  and  wound  his  wife;  — 
but  not  the  right  to  do  this;  because  in  the  last  case  he  would  be 
indictable  for  the  offense:  — and,  we  believe  that  a  Court  of  Chan- 
cery would  prohibit  a  husband  from  a  wanton  destruction  of  the 
wife's  house  or  property.  The  wife,  in  all  these  cases,  is  destitute 
of  the  usual  remedy  by  action  for  damages  against  the  husband  for 
this  or  any  other  injury  to  her  inheritance;  because  a  wife  can  in  no 
case  sue  her  husband.  The  agreement  to  marry,  and  the  consequent 
marriage,  amount  to  a  waiver  of  this  right  of  action  against  each 
other.  This  principle  is  founded  on  reasons  of  sound  policy.  But 
it  does  by  no  means  follow  that  because  the  husband  has  the  power 
of  doing  many  acts  prejudicial  to  the  interest  or  inheritance  of  his 
wife  with  impunity,  that  he  can  assign  and  transfer  this  power  to  a 
third  person,  and  give  him  this  privilege  of  impunity.  In  this  situa- 
tion of  parties  policy  does  not  require  that  this  impunity  should 
exist;  and,  therefore,  it  does  not  exist. 

As  to  the  second  question,  we  would  observe  that  whatever  were 
the  rights  and   liabilities  of  Babb  as  husband,  those  of  Perley,  the 


134  HUSBAND   AM)    WIFE. 

assignee,  seem  to  be  more  defined  and  better  explained;  and  if  any 
doubt  remain  as  to  Babb's  rights  before  the  extent  of  Perley's  exe- 
cution, the  cause  may  be  decided  on  this  second  point  by  the  appli- 
cation of  principles  well  settled  and  understood. 

It  is  admitted  that  the  extent  of  Perley's  execution  against  Babb, 
upon  his  estate  in  the  land  in  question,  operated  to  transfer  and 
convey  to  Perley  all  Babb's  interest  or  estate  in  such  land.  It  cer- 
tainly could  not  convey  any  more,  though  it  might  place  the  estate 
in  a  different  situation  in  respect  to  other  persons.  Let  us  then 
suppose  that,  instead  of  this  extent,  Babb  had  by  his  deed  conveyed 
to  Perley  all  his  right,  title  and  interest  in  and  to  the  land  belonging 
to  his  wife.  The  facts  would  then  present  to  us  no  other  than  the 
common  case  of  the  division  of  a  fee  simple  estate  into  a  freehold 
and  a  reversion.  The  freehold  or  life  estate  would  be  in  Perley; 
and  the  reversion  would  be  in  Babb's  wife;  because  Babb,  her  hus- 
band, had  not,  and  could  not  have  any  control  over  this  reversion. 
Nothing  short  of  a  deed  signed  by  her  as  well  as  by  him  could  ope- 
rate to  convey  it  to  Perley.  The  extent  has  not  affected,  in  any 
degree,  her  reversionary  interest.  Perley,  then,  being  only  tenant 
for  life  of  the  land  in  virtue  of  the  extent  of  his  execution,  he  could 
not  lawfully  commit  waste.     It  would  be  inconsistent  with  his  estate. 

The  act  complained  of  is  the  cutting  and  carrying  away  and  sell- 
ing about  forty  cords  of  wood.  Of  course,  it  was  an  act  which  a 
tenant  for  life  has  no  right  to  do;  it  was  not  for  fire  wood  nor 
fences;  it  was  neither  for  building  nor  repairing. 

In  the  case  before  us,  Mrs.  Babb,  the  reversioner,  sues  Perley  for 
committing  this  waste  on  her  inheritance.  Her  husband  is  joined 
in  the  action,  not  because  he  has  any  interest,  for  that  has  already 
been  legally  conveyed  to  Perley;  but  because  a  feme  coi'ert  can 
never  sue  alone,  unless  in  two  or  three  special  cases,  forming  excep- 
tions to  the  general  rule.  And  now,  we  may  ask,  why  should  not 
the  action  be  maintained  ?  If  it  should  be  urged  that  it  will  be 
prejudicial  to  the  rights  of  the  husband's  creditors,  by  depriving 
them  of  the  power  of  converting  the  lands  levied  upon  to  any  profit- 
able use;  the  answer  is,  the  creditors  of  the  husband  cannot  have 
any  more  control  of  the  wife's  land  than  the  husband  himself  had. 
The  creditors  may  avail  themselves  of  the  profits  of  the  wife's  land 
in  satisfaction  of  their  demands  against  the  husband  ;  but  if  there  are 
no  profits,  it  is  nothing  more  than  the  common  misfortune  of  those 
creditors  whose  debtors  are  insolvent. 

The  law  is  consistent  and  just.  It  subjects  the  land  to  the  pay- 
ment of  the  wife's  debts,  and  the  profits  to  the  payment  of  the 
debts  of  the  husband.     After  mature  deliberation,  we  perceive  no 


WIFE  S   DOWER. 


335 


Other  mode  of  deciding  this  cause  without  changing  the  nature  of 
legal  estates,  and  disturbing  those  principles  by  which  such  estates 
are  created  and  protected. 

We  are  unanimously  of  opinion  that  the  verdict  must  be  set  aside 
and  a  new  trial  granted. 


Wi/es  Dower. 
In  re  MARY  ANN  ALEXANDER. 

53  N.   J.   Eq.   96.— 1894. 

The  petitioner,  Mary  Alexander,  claims  to  be  the  owner  of  a 
parcel  of  land,  subject  to  the  inchoate  right  of  dower  of  Mary  Ann 
Alexander,  a  lunatic.  The  petitioner  asks  that  the  right  of  dower 
be  released  under  the  act  of  March  27,  1878,  which  provides  that  it 
might  be  so  released,  if  "  the  interest  of  the  owner  of  such  lands  " 
require?  it. 

Green,  V.  C.  *  *  *  It  is  objected  that  the  act  of  1878  does 
not  apply  to  cases  where  the  marriage  from  which  the  right  to  dower 
springs  was  contracted,  and  the  lands  in  which  it  is  claimed  vested  in 
possession  in  the  husband  before  the  passage  of  the  act. 

The  question  involved  is  the  scope  of  legislative  power  over  dower 
inchoate  at  the  time  of  enactment.  A  review  of  the  numerous  deci- 
sions bearing  on  the  point,  in  the  hope  of  extracting  some  recog- 
nized governing  principle,  would  be  a  profitless  task,  as  the  cases 
developed  an  irreconcilable  contrariety  of  opinion.  Judges  affirming 
the  power  of  the  legislature  to  modify,  control  and  even  abolish 
inchoate  dower,  argue  that  it  is  a  mere  possibility  because  it  is  a 
right  which  cannot  vest  before  it  becomes  consummate  by  the  death 
of  the  husband;  that  it  is  a  mere  incident  to  the  marriage  relation, 
established  by  law  and  not  by  contract,  and  therefore  subject  to 
legislative  change  or  destruction.  On  the  other  hand,  while  recog- 
nizing that  the  consummation  of  dower  is  contingent  on  the  death 
of  the  husband  in  the  lifetime  of  the  wife,  other  judges  argue  that 
inchoate  dower  is  something  more  substantial  than  a  mere  possibility, 
viz.,  that  it  becomes,  coincident  with  the  seizin  of  the  husband,  an 
interest  in  such  real  estate.  This  is  based  on  well-known  inci- 
dents of  the  right.  "  Dower  was,  indeed,  proverbially  the  foster- 
child  of  the  law,  and  so  highly  was  it  rated  in  the  catalogue  of  social 
rights,  as  to  be  placed  in  the  same  scale  of  importance  with  liberty 
and  life."  Park  Dow.  *2;  Co.  Litt.  124b.  When  it  had  attached  by 
the  seizin  of  the  husband,  it  could  not  be  discharged  by  any  act  of 


136  HUSBAND   AND    WIFE. 

nis,  although  the  owner  of  the  fee,  without  the  wife's  concurrence. 
Park,  Dow.  5.  It  is  an  encumbrance  (/"t^r/^r  v.  iVkyw,  2  Greenl.  22;  s. 
c.  II  Am.  Dec.  30,  note  at  39),  and,  as  such,  defeats  the  contract  to 
convey  an  unencumbered  title  (lb.  yones  v.  Gardner,  10  Johns.  266), 
and  comes  within  a  covenant  against  encumbrances.  Shearer  v. 
Ranger,  22  Pick.  447;  Carter  v.  Denman,  3  Zab.  260.  It  is  a  valu- 
able consideration  for  a  conveyance  to  a  wife  [Bul/ard  v.  Briggs, 
7  Pick.  533;  Garlick  v.  Strong,  3  Paige,  440),  or  for  a  promissory 
note  to  her.  Sykes  v.  Chadwick,  18  Wall.  141.  The  wife  may  main- 
tain an  action  for  its  protection  {Petty  v.  Petty,  4  B.  Mon.  215;  s.  c. 
39  Am.  Dec.  501;  Thayer  v.  Thayer,  14  Vt.  107;  s.  c.  39  Am.  Dec. 
2X1,  2x8),  or  file  a  bill  for  the  redemption  of  a  mortgage  covering  it. 
Davis  V.  WetheraU,  13  Allen,  60.  She  must  be  a  party  to  any  suit 
affecting  it.  Vreeland  v.  yaeobus,  4  C.  E.  Gr.  231.  That  it  is  an 
interest  in  the  land  from  the  time  of  the  seizin  of  the  husband  is  the 
law  in  this  State.      Wheeler  v.  Kirtland,  12  C.  E.  Gr.  534. 

In  that  case  Catharine  Kirtland  was,  and  since  1836  had  been,  the 
wife  of  John  Kirtland.  On  the  i6th  of  December,  1869,  her  husband 
was  the  owner  of  about  six  acres  of  land  in  the  county  of  Essex.  On 
that  day  a  judgment,  was  entered  up  against  Kirtland,  the  husband-. 
On  May  30,  1870,  the  Essex  public  road  board  laid  an  avenue  across 
the  tract,  taking  two  and  eighteen  hundredths  acres.  Damages 
were  awarded  to  Kirtland,  the  husband,  by  reason  of  the  taking  and 
condemning  of  the  same,  to  the  amount  of  $15,000.  The  judgment 
creditors  served  a  notice  on  the  road  board  w-arningthem  not  to  pay 
the  award  to  Kirtland.  Afterwards,  by  a  sale  under  the  judgment, 
one  Whitney  became  the  owner  of  the  rights  of  Kirtland,  the  hus- 
band, in  the  premises,  and  entitled  to  the  interest  of  the  husband  in 
the  amount  awarded  for  the  portion  of  the  premises  condemned. 
The  wnfe,  by  her  bill,  claimed  to  have  an  interest  in  the  award  by 
reason  of  her  inchoate  dower  in  the  land  so  condemned.  The  Court 
of  Errors  and  Appeals  held  that  the  inchoate  dower  of  the  wife  was 
a  valuable  interest  in  the  land  condemned,  the  value  of  which  passed 
into  the  award  by  the  transmutation  of  the  land  into  money,  and  that 
she  was  entitled  to  the  amount  decreed  in  her  favor  by  the  chancel- 
lor. Mr.  Justice  Reed,  in  giving  the  opinion  of  the  court,  refused 
to  follow  the  cases  of  Gwynne  v.  Cincimmti,  3  Ohio,  24,  and  Moore  v. 
City  of  New  York,  8  N.  Y.  no,  upon  which  many  of  the  decisions 
will  be  found  to  be  based.  The  case  of  Wheelers.  Kirtland &'x.^rtss\y 
declares  that  inchoate  dower  is  a  valuable  interest  in  land,  and 
brings  it  within  the  protecting  clause  of  the  Constitution,  which 
provides  that  private  property  shall  not  be  taken  for  public  use 
without  just  compensation.     If  this  is  so,  on  what  principle  can  it 


WIFE  S   DOWER.  I37 

be  said  that  it  is  not  also  within  the  rule  of  legislative  inhibition 
that  private  property  shall  not  be  taken  for  private  use  with  or  with- 
out compensation,  a  rule  which,  if  not  a  corollary  from  the  clause 
quoted,  springs  out  of  the  first  clause  of  the  bill  of  rights  of  our 
Constitution,  which  declares  that  the  right  of  acquiring,  possessing 
and  protecting  property  is  inalienable  ?  Under  that  rule  it  is  not 
competent  for  the  legislature,  by  enactment,  to  take  the  property 
of  A  and  give  it  to  B,  nor,  under  the  principle  of  Wheeler  v.  Kirt- 
laud,  to  take  a  valuable  interest  in  land  which  A.  has  acquired  and 
transfer  it  to  B.  This  inhibition  of  arbitrary  legislation  as  to  a  right 
in  property  is  not  confined  to  a  transfer  of  it  from  one  person  to 
another,  but  extends  to  attempts  to  impair  its  value  or  weaken  its 
security.  As  the  inchoate  right  of  dower  of  Mrs.  Mary  Ann  Alexan- 
der  has  attached  to  the  land  in  question  prior  to  the  passage  of  the 
act,  I  am  of  opinion  that  its  provisions  do  not  apply  to  her  interest 
therein.' 


In  the  Matter  of  the  Estate  of  HENRY  P.  PULLING. 

97   Mich.   375-— 1893. 

Appeal  by  a  widow  from  an  order  of  the  Circuit  Court  reversing 
an  order  of  the  Probate  Court  which  allowed  her  dower  in  certain 
lands  sold  by  her  husband  on  contract,  and  not  fully  paid  for  during 
his  lifetime.  Reversed,  and  judgment  certified  to  the  Probate  Court, 
giving  the  petitioner  dower  in  the  interest  of  her  husband  in  said 
lands,  to  be  admeasured  by  giving  her  a  sum  of  money  in  lieu 
thereof. 

McGrath,  J.  The  circuit  judge  found  that  Henry  P.  Pulling 
and  Jeane  W.  Pulling  were  married  April  26,  1890;  that  said  Henry 
P.  Pulling  died  July  15,  1890,  leaving  appellant,  his  widow,  surviving 
him ;  that  at  the  time  of  his  death  said  Henry  P.  Pulling  was  seized  in 
fee  of  ten  parcels  of  land ;  that  prior  to  the  marriage  of  Henry  P. 
Pulling,  he  had  made  and  executed  nine  separate  contracts  for  the 
sale  of  said  parcels  of  land ;  that  at  the  time  of  the  said  marriage, 
and  also  at  the  time  of  his  death,  the  vendees  under  said  contracts 
were,  respectively,  in  the  possession  of  the  several  tracts  of  land 
under  said  contracts,  which  were  then  in  full  force, —  that  is,  none 

'  "We  think  that  it  must  be  considered  as  settled  in  this  State,  notwithstand- 
ing Moore  V.  lilt'  Mayor,  and  some  dicta  in  other  cases,  that,  as  between  a  wife 
and  any  other  than  the  State,  or  its  delegates  or  agents  exercising  the  right  of 
eminent  domain,  an  inchoate  right  of  dower  in  lands  is  a  subsisting  and  valu- 
able  interest  which  will  be  protected  and  preserved  to  her,  and  that  she  has  a 
right  of  action  to  that  end." —  S/mar  v.  CanaJay,  53  N.  Y.  298,  304. 


138 


HUSBAND   AND    WIFE. 


of  them  had  been  declared  forfeited.  The  purchase-price  in  one 
instance  was  §400,  in  another  $875,  and  in  another  $1,000.  The 
others  were  from  $1,100  to  $14,500.  The  aggregate  considera- 
tion was  originally  about  $49,000.  Payments  had  reduced  this 
amount  to  $45,000.  The  sole  question  raised  is  whether,  as  be- 
tween the  widow  and  the  estate,  the  interest  in  these  lands  shall  be 
treated  as  realty  or  as  personalty.  The  circuit  judge  found,  as  a 
matter  of  law,  that  the  widow  was  not  entitled  to  dower  in  these 
lands,  and  the  widow  appeals. 

Our  statute  provides  (How.  Stat.  sec.  5733)  that:  "  The  widow 
of  every  deceased  person  shall  be  entitled  to  dower,  or  the  use,  dur- 
ing her  natural  life,  of  one-third  part  of  all  the  lands  whereof  her 
husband  was  seized  of  an  estate  of  inheritance  at  any  time  during  the 
marriage,  unless  she  is  lawfully  barred  thereof." 

It  is  insisted  on  behalf  of  the  estate  that  at  the  time  of  the  mar- 
riage, Henry  P.  Pulling  held  the  legal  title  only  in  trust  for  the  pur- 
chasers. The  cases  cited,  however,  in  which  this  has  been  asserted, 
and  the  right  to  dower  denied,  are,  without  an  exception,  cases 
where  the  vendee  had  paid  the  entire  consideration.  \^Here  follows 
a  statement  of  the  following  cases  :  Kintner  v.  McRae,  2  Ind.  453  ;  Stevens 
V.  S/nith,  4  J.  J.  Marsh,  64;  Oldham  v.  Sale,  i  B.  Mon.  76;  Gaines  v. 
Gaines,  9  B.  Mon.  295;  Razvlings  v.  Adafns,  7  Md.  26;  Cowman  v. 
Hall,  3  Gill  &  J.  398;  Firestotie  v.  Firestone,  2  Ohio  St.  415.] 

In  none  of  these  cases  had  the  husband,  even  at  the  time  of  the 
marriage,  any  beneficial  interest  in  the  land. 

******** 

In  the  present  case  it  is  not  sought  to  subject  the  purchaser's  in- 
terest, nor  the  interest  held  by  the  husband  at  the  time  of  the  mar- 
riage, to  dower.  The  only  claim  made  is  that  the  interest  held  at 
the  time  of  his  death  shall  be  regarded  as  realty.  It  is  purely  a 
question  of  the  quality  of  that  interest.  The  husband  died  seized, 
not  of  the  legal  title  alone,  but  of  the  legal  title  with  a  beneficial 
interest  aggregating  $45,000.  A  court  of  equity  would  undoubtedly 
interpose  in  any  case  to  protect  the  interest  of  the  purchaser,  and 
this  would  be  so  even  though  the  purchase-money  had  all  been  in 
fact  paid  during  the  lifetime  of  the  husband.  The  wife's  right  would 
be  regarded  as  attaching  subject  to  the  subsisting  claim  or  existing 
contract,  and  would  be  liable  to  be  defeated  by  the  performance  of 
the  conditions  of  the  contract  by  the  purchaser  during  coverture. 
As  is  said  in  4  Kent  Com.  50:  "  The  wife's  dower  is  liable  to  be 
defeated  by  every  subsisting  claim  or  incumbrance,  in  law  or  equity, 
existing  before  the  inception  of  her  right." 

In  the  present  case,  the  wife's  dower  has  been  defeated  only  so 


WIFE  S   DOWER.  1 39 

far  as  the  amount  due  upon  the  contracts  has  been  reduced  by  pay- 
ments. Even  though  a  trust  be  implied,  it  is  one  coupled  with  a 
beneficial  interest,  and  it  is  well  settled  that  the  wife  of  a  trustee  is 
entitled  to  dower  commensurate  with  the  husband's  interest. 
4  Kent,  Com.  43. 

In  Bowie  v.  Barry,  3  Md.  Ch.  359,  the  husband,  in  1832,  during 
coverture,  purchased  the  land,  taking  from  the  vendor  a  bond  con- 
ditioned to  convey  the  title  on  payment  of  the  purchase-money.  In 
1839  the  husband  sold  the  land,  and  gave  to  the  vendee  a  bond  for  a 
deed.  In  1843  the  husband  paid  the  balance  of  the  purchase-money 
on  his  purchase  and  took  a  deed,  and  died  in  1848.  At  his  death  a 
portion  of  the  purchase-money  upon  the  contract  for  sale  made  by 
him  was  unpaid.  The  court  in  that  case  say:  "  It  may  be  that  in 
equity  an  agreement  of  the  husband  to  convey  before  dower  attaches 
will,  if  enforced  in  equity,  extinguish  the  claim  to  dower;  but  no 
case,  I  apprehend,  can  be  found  in  which  it  has  been  held  that  a 
mere  agreement  to  convey  after  the  inception  of  the  title  to  dower 
has  defeated  the  title,  though  an  actual  conveyance  without  the  con- 
currence of  the  wife  would  have  done  so.  *  *  *  No  case  has 
been  decided  in  which  it  has  been  held  that  a  mere  executory  con- 
tract to  convey  by  the  husband  has  had  the  effect  to  defeat  the 
dower." 

Although  in  that  case  the  legal  title  vested  in  the  husband  after 
marriage,  he  had,  before  deed  to  him,  entered  into  a  contract  to 
convey  that  title,  and  there  is  no  difference  in  principle  between 
that  case  and  the  present. 

Section  5887  only  applies  to  cases  where  a  forfeiture  has  been  de- 
clared, and,  in  any  event,  could  only  apply  to  the  three  contracts, 
not  exceeding  $1,000  in  amount. 

It  follows  that  the  widow  is  entitled  to  dower  in  the  interest  held 
by  the  husband  at  the  date  of  his  death,  that  interest  being  repre- 
sented by  the  amount  then  due  upon  these  contracts.  We  discover 
no  difficulty  as  respects  the  admeasurement.  Dower  cannot  be 
assigned  of  the  lands  in  question,  but  a  sum  in  lieu  of  dower  may  be 
awarded.     Brown  v.  Bronson,  35  Mich.  415. 

The  judgment  of  the  Circuit  Court  will,  therefore,  be  reversed, 
with  costs  of  both  courts  to  appellant,  and  the  judgment  of  this 
court  certified  to  the  Probate  Court  for  the  county  of  Wayne. 

The  other  justices  concurred. 


140  HUSBAND   AND    WIFE. 

Archer,  J.,  in  McCAULEY  v.  GRIMES  and  WIFE. 

2  Gill  &  J.   (Md.)  323.— 1830. 

The  record  presents  in  effect  the  same  principle  for  adjudication 
which  has  heretofore  come  before  the  courts  in  several  States  of  the 
Union.  In  Holbrook  v.  Finney,  4  Mass.  Rep.  566,  it  was  decided  that 
a  conveyance  in  fee  and  a  conveyance  by  the  grantee  to  the  grantor 
by  way  of  mortgage  being  considered  as  parts  of  the  same  transac- 
tion, did  not  give  to  the  grantee  such  a  seizin  as  entitled  his  wife  to 
have  dower  in  the  granted  premises.  And  in  Clarke  v.  Mu?i/oe, 
14  Mass.  352,  where  the  mortgage  was  made  to  a  third  person,  at  the 
same  time  with  the  deed  to  the  mortgagor,  the  same  determination 
was  had;  in  each  of  those  cases  the  deeds  were  executed  in  pursu- 
ance of  a  previous  agreement  between  the  parties.  In  South  Carolina, 
the  same  doctrine  had  prevailed  before,  as  will  be  seen  by  a  refer- 
ence to  Bogie  v.  Rutledge,  i  Bay,  312;  this  decision  has  been  recog- 
nized, and  approved  in  that  State  in  a  very  recent  decision.  Trus- 
tees of  Frazier  v.  Centre  a'  Hall,  i  McCord,  279.  These  determina- 
tions have  been  followed  in  New  York.  In  Stozu  v.  Tifft,  15  Johns. 
458,  the  case  in  4  Mass.  566,  was  cited  and  approved,  and  a  judg- 
ment given  in  conformity  with  it;  in  the  latter  case,  however,  no 
agreement  was  proved,  further  than  could  be  inferred  from  the  exe- 
cution of  the  conveyance  and  mortgage,  and  the  internal  evidence 
they  furnished.  In  Pennsylvania,  too,  the  same  doctrine  prevails. 
In  Reed  \ .  Morrison,  12  Sergeant  &  Rawle,  70,  it  was  adjudged  that 
as  against  the  mortgagee  for  the  purchase-money,  the  widow  had 
no  such  seizin  as  would  entitle  her  to  dower.  So  far  as  we  have  ex- 
amined the  American  cases,  the  decisions  appear  to  be  uniform 
against  the  widow's  right  to  dower,  unless  subject  to  the  payment 
of  the  purchase-money  secured  by  mortgage  —  and  Chancellor  Kent, 
in  his  recent  treatise  on  the  Law  of  Real  Property,  approves  these 
determinations.  4  Kent's  Com.  38,  39.  The  cases  in  Massachu- 
setts and  New  York  proceed  on  the  doctrine  of  instantaneous  seizin. 
The  deed  and  mortgage  were  looked  upon  as  constituting  but  one 
contract,  bearing  the  same  date,  and  delivered  at  the  same  time; 
and  that  as  no  interval  of  time  intervened,  between  the  taking  and 
rendering  back  the  fee,  the  case  might  be  assimilated  to  the  conusee 
of  a  fine,  whose  wife  would  not  be  entitled  to  dower,  because  by  the 
same  fine  the  estate  is  rendered  back  to  the  conusor;  it  was  there 
considered  as  merely  in  transitu,  and  not  resting  for  an  instant;  the 
grant  and  render  being  one  entire  act.  But,  perhaps,  there  is  no 
general  rule  in  strictness,  that  in  case  of  instantaneous  seizin  the 


WIFE'S   DOWER.  I4I 

widow  shall  or  shall  not  be  entitled  to  dower;  this  must  depend  as 
well  upon  the  character  of  the  seizin  as  its  duration;  when  a  man 
has  the  seizin  of  an  estate,  though  for  an  instant,  beneficially  for  his 
own  use,  his  widow  shall  be  endowed ;  where  the  husband  is  the 
mere  instrument  for  passing  the  estate,  although  there  may  be  an 
instantaneous  seizin,  the  widow  shall  not  be  endowed,  i  Thomas 
Coke,  665,  666,  note  G;  Preston,  Est.  546;  2  Bac.  Abr.  371. 


FOLLETT,    J.,    IN    PRICE    V.    PRICE. 

124  N.  Y.  598.— 1891. 

By  the  common  law,  neither  dower  nor  curtesy  arises  from  a 
voidable  marriage,  if  it  be  annulled  during  the  lifetime  of  the  par- 
ties, and  when  annulled  by  the  judgment  of  a  competent  court,  they 
are  in  the  same  situation  in  respect  to  each  other,  and  to  rights  in 
the  property  of  each  other,  as  though  a  marriage  had  never  been 
entered  into,  and  the  children  born  of  it  are  illegitimate  unless 
legitimated  by  a  statute.  Aughtie  v.  Aughtie^  i  Phill.  201 ;  Cage  v. 
Acton,  I  Ld.  Raym.  521;  Bish.  on  M.  &  D.,  sees.  116-118,  690,  712; 
Bish.  on  H.  &  W.  sees.  247,  479,  482;  i  Bright.  H.  &  W.  7,  322; 
2   Id.  366;   I   Roper  H.  &  W.  332;  Stewart  M.   &  D.  sees.  147,   429, 

437- 

And  in  the  absence  of  a  statute  saving  the  right  to  dower,  the  dis- 
solution a  vinculo  of  a  valid  marriage,  for  the  fault  of  either  party, 
bars  it.  Barrett  v.  Failing,  iii  U..  S.  523;  Frampton  v.  Stephens, 
L.  R.  21  Ch.  D.  164;   14  Am.  &  Eng.  Ency.  of  Law,  537;  5  Id.  921. 


GELZER  V.  GELZER. 

I   Bailey's  Eq.   (S.   C.)  387.— 1831. 

The  complainant  was  the  widow  of  Thomas  Gelzer,  who  died  in- 
testate; and  this  was  a  bill  against  his  administrator,  and  distribu- 
tees, to  recover  either  her  dower  of  the  real  estate  of  the  intestate, 
or  her  distributive  share  of  his  real,  and  personal  estate. 

Johnson,  J.  The  agreement,  out  of  which  the  question  arises, 
was  entered  into  before,  and  in  contemplation  of  the  marriage  be- 
tween the  complainant,  then  Sarah  Lewis,  and  the  intestate,  Thomas 
Gelzer;  and  it  recites  that  the  said  complainant  had,  "  in  her  own 
right,  an  ample  estate  entailed  and  secured  to  her,  of  which  the  said 
Thomas  would  not  take  any  benefit  after  her  death;"  in  considera- 
tion whereof,  and  of  the  nominal  payment  of  one  dollar,  she  cove- 


142  HUSBAND   AND    WIFE. 

nants,  and  agrees,  that  if  the  said  Thomas  should  die,  she  surviv- 
ing, "  she  will  not  have,  claim,  or  demand,  or  pretend  to  have, 
claim,  or  demand,  any  dower,  or  thirds,  or  any  other  right,  title, 
interest,  claim  or  demand,  of,  in,  or  to,  any  of  the  messuages,  lands, 
tenements,  and  real  estate,  whereof  the  said  Thomas  may  have  been 
seized  during  the  intermarriage  aforesaid." 

Under  the  statute  27  Hen.  8,  c.  10,  sec.  6,  which  is  of  force  in 
this  state,  P.  L.  51,  this  contract  cannot  operate  as  a  bar  to  the 
complainant's  right  of  dower,  because,  according  to  Lord  Coke, 
nothing  less  than  a  freehold  estate,  to  commence  in  possession  at 
the  death  of  the  husband,  settled  upon  the  wife  by  way  of  joint- 
ure, would  be  allowed  as  a  substitute,  under  the  provisions  of  that 
statute;  Co.  Litt.  36b:  and  here  nothing  is  provided  for  the  wife. 
Neither  can  such  a  covenant  operate  as  an  estoppel  at  common  law. 
It  does  not  profess  to  be  a  relinquishment;  and,  moreover,  she  had, 
at  the  time,  no  interest  upon  which  a  relinquishment  could  operate. 
It  can,  therefore,  bind,  at  law,  only  as  an  agreement  not  to  claim, 
or  demand  her  dower,  etc.  But  equity  frequently  regards  that  as 
done  which  ought  to  have  been  done;  or  will,  when  it  is  necessary, 
compel  parties,  seeking  the  aid  of  the  court,  to  do  that  which  in 
conscience  they  are  bound  to  do. 

The  complainant  was  of  full  age,  and  under  no  legal  disability  to 
contract;  the  subject-matter  was  legitimate;  and  the  consideration 
of  marriage  is  sometimes  said  to  be  the  highest  known  to  the  law; 
and  I  confess  that  I  have  not  been  able  to  discover  any  rule  or 
principle  which  discharges  her  from  the  obligation  which  this  agree- 
ment imposes.  She  had  an  ample  fortune  of  her  own,  so  tied  up 
that  she  could  not  confer  it  upon  her  husband;  and  in  considera- 
tion that  he  would  take  her  in  marriage,  she  agreed  not  to  claim 
her  dower,  or  any  right  of  inheritance  in  his  estate.  It  is  a  contract 
without  fraud,  and  apparently  of  perfect  equality.  Both  Atherley 
and  Roper  treat  this  question  as  one  admitting  of  no  controversy. 
A  jointure,  to  operate  as  a  bar  to  dower  under  the  statute,  must 
consist  of  a  freehold  estate;  but  a  woman,  under  no  legal  disabil- 
ity, may  stipulate  to  substitute  anything  she  pleases  in  place  of  it. 
Atherley  on  Marriage  Settlements,  511 ;  i  Roper,  Husband  and  Wife, 
480.  There  is  nothing  in  the  case  of  Hastings  v.  Dickinson^  7  Mass. 
153,  opposed  to  this  view;  for  the  chief  justice.  Parsons,  puts  that 
case  distinctly  on  the  ground  that  the  condition  upon  which  the 
wife  covenanted  to  renounce  her  dower  was  not  performed,  and 
could  not  be  performed,  in  consequence  of  the  insolvency  of  the 
husband.  The  case  of  Glover  y.  Bates,  i  Atk.  439,  turned  upon  the 
infancy  of  the  wife,  at  the  time  when  she  entered  into  the  agreement. 


WIFE'S   DOWER. 


143 


She  was,  therefore,  incapable  of  binding  herself  by  an  agreement, 
and  nothing  but  a  jointure,  in  conformity  to  the  statute,  could 
bar  her  of  dower. 

The  appeal  in  this  case  must  therefore  be  dismissed,  and  the  decree 
of  the  Circuit  Court  affirmed;  and  it  is  so  ordered. 

O'Neall,  J.  and  Harper,  J.,  concurred. 


CHURCH  V.   BULL. 


2  Denio  (N.   Y.),  430. — 1845. 

On  error  from  the  Supreme  Court.  The  action  in  the  court  below 
was  ejectment  brought  by  Bull  and  wife  against  Church,  for  the 
dower  of  Mrs.  Bull,  in  lands  of  which  a  former  husband  was  seized 
during  their  coverture. 

The  Chancellor.  The  testator,  in  this  case,  devised  his  real  and 
personal  estate  to  his  wife  during  her  widowhood,  and  after  her  death 
or  remarriage  he  gave  all  his  property,  except  some  small  legacies 
which  were  bequeathed  to  his  daughters,  to  his  three  sons.  But  he  did 
not  state  in  his  will  that  he  intended  this  provision  for  his  wife, 
during  her  widowhood,  to  be  in  lieu  of  her  dower  in  his  real  estate 
after  the  determination  of  such  provision,  by  her  re-marriage.  And 
the  only  question  for  our  consideration  now  is,  whether  the  disposi- 
tion of  his  real  estate  after  her  re-marriage,  is  so  inconsistent  with 
her  enjoyment  of  dower  therein  subsequent  to  that  time,  as  to 
deprive  her  of  such  dower,  and  to  leave  her  wholly  unprovided  for 
in  case  she  should  re-marry. 

There  is  no  natural  equity  in  the  principle  which  gives  to  the  hus- 
band the  right  to  dispose  of  his  whole  personal  estate,  the  joint 
earnings  of  himself  and  wife,  to  her  exclusion;  nor  in  that  which 
gives  him  the  power  to  dispose  of  his  whole  real  estate  except  the 
use  of  one-third  thereof  during  the  life  of  the  wife.  Hence  the 
courts  have  always  been  astute  in  protecting  the  widow's  right  to 
the  small  pittance  which  the  rules  of  the  common  law  had  given 
to  her  in  the  estate  of  her  husband  after  his  death.  Hence,  as  I,ord 
Bacon  stated  nearly  two  hundred  and  fifty  years  since,  the  tenant  in 
dower  was  so  much  favored  in  the  courts  that  at  that  early  period  it 
had  become  "  the  common  by-word  in  the  law,  that  the  law  favoreth 
three  things,  life,  liberty  and  dower."  Bac.  Read,  on  the  Stat,  of 
Uses,  38;  Jenk.  Rep.  7  Cent.  Ca.  16.  The  right  of  dower  being 
a  legal  right,  and  thus  favored  by  the  courts,  the  wife  cannot  be 
deprived  of  it  by  a  testamentary  disposition  in  her  favor,  in  the 
nature  of  a  jointure,  so  as  to  put  her  to  her  election,  unless  the  tes- 


144  HUSBAND    AND    WIFE. 

tator  has  declared  the  same  to  be  in  lieu  of  dower,  either  in  express 
words  or  by  necessary  implication.  In  the  cases  of  Fuller  v.  Yates, 
8  Paige's  Rep.  325,  and  of  Saii/ord \ .  yackso/i,  10  Id.  266,  I  had  occa- 
sion to  examine  most  of  the  cases  on  this  subject  which  had  then  been 
decided,  and  I  then  concluded,  as  the  result  of  all  the  cases  in  this 
State  and  in  England,  that  the  settled  rule  of  law  was,  that  to  com- 
pel the  widow  to  elect  between  the  dower  and  a  provision  made  for 
her  in  the  will  where  the  testator  had  not  in  terms  declared  his  in- 
tention on  the  subject,  it  was  not  sufficient  that  the  will  rendered  it 
doubtful  whether  he  intended  that  she  should  have  her  dower  in 
addition  to  that  provision;  but  that  to  deprive  her  of  dower  the 
terms  and  provisions  of  the  will  must  be  totally  inconsistent  with  her 
claim  of  dower  in  the  property  in  which  such  dower  was  claimed;  so 
that  the  intention  of  the  testator  in  relation  to  some  part  of  the 
property  devised  to  others  would  be  defeated  if  such  claim  was 
allowed.  And  in  the  last  case,  which  was  the  same  as  this,  except 
that  the  widow  in  that  case  was  entitled  to  the  whole  real  estate, 
even  after  her  re-marriage,  while  any  of  the  children  continued  to  be 
minors,  it  was  decided  that  her  claim  for  dower  in  the  one-third  of 
the  real  estate,  subsequent  to  the  termination  of  her  particular  estate 
in  the  whole  of  the  same,  was  not  necessarily  inconsistent  with  a 
general  devise  of  the  whole  of  his  property  to  his  children  after  that 
time.  Since  that  decision  was  made,  the  case  of  Ellis  v.  Lewis, 
3  Hare's  Rep.  310,  came  before  Vice  Chancellor  Wigram,  in  Eng- 
land, and  was  decided  in  favor  of  the  widow  upon  the  same  princi- 
ple. He  there  says,  "  I  take  the  law  to  be  clearly  settled  at  this 
day  that  a  devise  of  lands  eo  nomine  upon  trusts  for  sale,  or  a 
devise  of  lands  eo  nomine  to  a  devisee  beneficially,  does  not,  per  se, 
express  an  intention  to  devise  the  lands  otherwise  than  subject  to 
its  legal  incidents,  that  of  dower  included.  There  must  be  some- 
thing more  in  the  will,  something  inconsistent  with  the  enjoyment 
by  the  widow  of  the  dower  by  metes  and  bounds,  or  the  devise 
standing  alone  will  be  construed  as  I  have  stated."  And  in  Harri- 
son V.  Harrison,  i  Keene's  Rep.  768,  Lord  Langdale  says  \.\\dX pritna 
facie  the  testator's  farms,  lands,  and  all  his  other  real  estate,  must 
mean  the  real  estate  of  which  he  had  the  power  of  disposing;  which 
would  be  his  real  estate  subject  to  lawful  claims,  and  one  of  those 
claims  would  be  the  dower  of  his  wife.  Here  the  whole  property  is 
devised  to  the  widow  during  her  widowhood.  Of  course,  no  ques- 
tion of  dower  could  arise  while  she  continued  a  widow,  as  she  was 
entitled  to  the  possession  of  the  whole  during  that  time.  And  the 
subsequent  devise  of  his  whole  real  estate  to  his  three  sons  is  not 
necessarily  inconsistent  with  an  intention,  on  the  part  of  the  testa- 


WIFE  S   DOWER. 


145 


tor,  that  his  wife  should  be  left  to  her  legal  right  of  dower  alone  for 
her  support,  after  the  particular  estate  which  had  been  devised  to 
her  had  been  determined,  by  her  marriage. 

In  the  language  of  the  vice-chancellor  and  master  of  the  rolls  in 
the  above  cases,  prima  facie  the  devise  of  the  testator's  whole  real 
estate  to  his  three  sons  after  that  time  did  not  per  se  express  an 
intention  to  devise  such  real  estate  otherwise  than  subject  to  its 
legal  incidents,  one  of  which  legal  incidents  was  the  widow's  com- 
mon-law right  of  dower  therein. 

For  these  reasons  I  think  we  cannot  deprive  the  wife  of  the  testa- 
tor of  her  dower  in  the  lands  of  her  deceased  husband  subsequent 
to  her  marriage,  consistently  with  the  settled  rule  of  law  on  this 
subject;  and  that  the  judgment  of  the  Supreme  Court  was  right  and 
should  be  affirmed.' 

'  "  In  California  and  a  few  other  states  the  common-law  dower  has  been 
wholly  abolished,  and  a  species  of  interest,  borrowed  from  the  French  and  Span- 
ish laws,  has  been  introduced,  called  "community  property."  This  community 
property  embraces  both  what  at  the  common  law  would  be  real  and  personal 
estate,  and  in  fact  substantially  the  same  rules  govern  the  devolution  of  things 
real  and  things  personal.  The  law  of  these  states  recognizes  two  kinds  of 
property  which  may  belong  to  the  spouses  in  case  of  marriage  —  'the  separate 
property'  and  the  'community  property.'  The  separate  property  of  either  hus- 
band or  wife  is  what  he  or  she  owned  at  the  time  of  marriage,  and  what  he  or 
she  acquired  during  marriage  by  inheritance,  devise,  bequest,  or  gift,  and  the 
rents  and  profits  thereof.  The  separate  property  of  each  spouse  is  wholly  free 
from  all  interest  or  claim  on  the  part  of  the  other,  and  is  entirely  under  the 
management,  control,  and  disposition,  testamentary  or  otherwise,  of  the  spouse 
to  whom  it  belongs.  All  other  property  is  community.  It  is  a  settled  doctrine 
that  all  property  acquired  by  the  husband  after  the  marriage,  and  during  its 
continuance,  is  presumed  to  be  community.  During  the  marriage  the  husband 
alone  has  the  custody,  control,  management  and  power  of  disposition  of  the 
community  property,  and  it  is  liable  for  his  debts  ;  but  still  in  theory  the  wife 
has  an  inchoate,  undivided  interest  in  it  during  the  entire  coverture,  so  that  the 
husband  cannot  transfer  it  by  mere  gift  or  otherwise  with  the  intent  and  pur- 
pose of  defrauding  her  of  her  share,  or  of  defeating  her  exclusive  interest 
expectant  upon  his  death.  Upon  the  death  of  the  wife,  the  entire  community 
property  vests  in  the  husband,  without  the  necessity  of  any  administration. 
Upon  the  death  of  the  husband,  the  community  property  is  first  subject  to  the 
payment  of  debts  and  expenses  of  administration,  and  of  the  residue  the  widow 
is  entitled  absolutely  to  one  undivided  half,  which  is  partitioned,  and  set  apart, 
and  vested  in  her  in  the  proceedings  for  administering  upon  the  estate  ;  while 
the  other  half  is  subject  to  the  testamentary  disposition  of  the  husband,  or  if  he 
dies  intestate,  devolves  upon  specified  persons  as  his  '  heirs.'  In  other  words, 
the  husband's  power  extends  only  to  one-half  of  the  community  property,  and 
he  cannot  by  will  devise  or  bequeath  it  in  any  manner  or  to  any  person  so  as  to 
infringe  upon  the  widow's  vested  right  to  one-half.  With  respect  to  the  widow's 
election,  whenever  the  husband  has  made  a  provision  for  her  benefit,  and  has 
assumed  to  dispose  of  all  the  remaining  community  property,  the  California 
[Domestic  Relations — 10.] 


146  HUSBAND   AND    WIFE. 

Husband' s  Estate  by  the  Curtesy. 

FERGUSON  V.  TWEEDY. 

43  N.   Y.   543.— 1871. 

The  wife  of  the  plaintiff,  being  co-devisee  with  her  brother  of  a 
certain  farm,  with  a  limitation  over  on  the  death  of  either  without 
issue  to  the  survivor,  by  deeds  interchanged  with  her  brother  before 
marriage,  partitioned,  until  either  should  die  without  issue  and  no 
longer,  the  farm  devised,  and  went  into  exclusive  possession  of  the 
part  conveyed  to  her,  the  brother  taking  exclusive  possession  of  the 
part  conveyed  to  him.  The  wife  died  leaving  issue  (the  defendant), 
and  subsequently  the  brother  died  without  issue. 

The  action  was  brought  originally  by  Harvey  D.  Ferguson,  the 
plaintiff's  testator,  for   equitable  relief. 

FoLGER,  J.  This  action  cannot  be  sustained  unless  Harvey  D. 
Ferguson,  the  testator,  had  in  his  lifetime  an  estate  as  tenant  by  the 
curtesy  in  the  premises,  or  some  part  of  them,  which  were  recovered 
in  the  action  of  the  respondents  against  Samuel  G.  Green,  judgment 
wherein  was  rendered  on  the  ist  of  February,  1861.  To  establish 
such  tenancy  there  were  needed  four  things:  Marriage,  issue  of  the 
marriage,  death  of  the  wife,  and  her  seizin,  during  marriage,  of  the 
premises  in  question.  There  is  no  dispute  but  that  all  of  these  ex- 
isted, save  the  last. 

It  is  a  general  rule  that  to  support  a  tenancy  by  the  curtesy  there 
must  be  an  actual  seizin  of  the  wife.  Mercer  s  Lessees  v.  Seldon, 
I  How.  (U.  S.)  37-54.  The  rule  is  not  inflexible.  There  are  excep- 
tions to  it.  The  possession  of  a  lessee  under  a  lease  reserving  rent, 
is  an  actual  seizin,  so  as  to  entitle  the  husband  to  a  life  estate  in  the 
land  as  a  tenant  by  the  curtesy,  though  he  has  never  received  or 
demanded  rent  during  the  life  of  his  wife.  Ellsworth  v.  Cook^ 
8  Paige,  646.  Wild,  unoccupied  or  waste  lands  may  be  construct- 
ively in  the  actual  possession  of  the  wife.  8  J.  R.  271.  A  recovery 
in  an  ejectment  has  been  held  equivalent  to  an  actual  entry. 
8  Paige,  supra.  And  it  has  been  held  that,  where  the  wife  takes 
under  a  deed,  and  there  is  no  adverse  holding  at  the  time, 
actual   entry  is   not    necessary.       yackson  v.    J^o/msoii,    5    Cow.    74. 

Code  has  only  legislated  by  prescribing  the  time  within  which  her  election  must 
be  made,  in  cases  where  an  election  is  necessary,  and  by  declaring  that  certain 
conduct  by  her  shall  amount  to  an  election.  The  more  important  question, 
when  a  case  for  election  arises  from  the  provisions  of  a  will,  is  left  to  be  deter- 
mined by  the  settled  doctrines  of  equity  jurisprudence  which  deal  with  that  sab- 
ject  matter." — Pomeroy,  Equity  Jurisprude.nce,  §  503.  And  see  Spreckels  v 
Spree kels,  116  Cal.  33q. 


husband's  estate  by  curtesy.  147 

But  the  facts  of  this  case  open  not  the  door  for  any  of  these  excep- 
tions to  come  in.  Before  the  marriage  of  the  testator  to  his  wife, 
she  did  convey  by  quitclaim  deed  the  premises  in  question  for  a 
term  which  was  in  its  duration  as  long  as  her  life.  The  grantee 
in  that  deed,  thus  acquiring  an  estate  for  her  life  in  the  lands,  did 
enter,  and  he  and  his  assign  held  the  possession  up  to  her  death, 
and  afterward.  It  is  true  that  this  deed  was  one  of  two  inter- 
changed between  the  parties  to  effect  an  amicable  partition  of 
premises  held  by  them  at  that  time  in  common.  But  the  execution 
of  these  deeds,  if  followed,  as  it  was,  by  possession  in  severalty, 
was  valid  and  sufficient  to  sever  the  possession  for  the  lifetime  of 
the  testator's  wife.  Baker  v.  Lorillard,  4  N.  Y.  257;  Carpenter  v. 
Schermcrhorn,  2  Barb.  Ch.  314. 

And  from  the  time  of  the  execution  by  her  of  that  deed,  until  the 
day  of  her  death,  she  had  not,  nor  had  her  husband,  actual  posses- 
sion of  the  premises;  she  nor  he  made  claim  to  the  possession  of 
them;  she  nor  he  received  rent  or  other  profit  from  them;  she  nor 
he  had  right  to  ask  possession  or  rent  or  profit.  In  short,  there 
did  not  any  fact  exist  which,  for  her  lifetime,  after  the  execution 
of  the  deed,  gave  her  a  constructive  possession  or  right  of  pos- 
session. On  the  contrary,  there  did  exist  in  another,  so  far  as 
she  and  her  husband  were  concerned,  exclusive  possession,  and 
right  of  such  possession,  for  a  term  which  ran  for  her  life.  There 
was,  then,  an  outstanding  estate  for  life  in  the  premises,  which, 
beginning  before  her  coverture  began,  did  not  end  until  her  cover- 
ture ended.  And  it  is  settled,  that  if  there  be  an  outstanding  estate 
for  life,  the  husband  cannot  be  the  tenant  by  the  curtesy  of  the 
wife's  estate  in  reversion  or  remainder,  unless  the  particular  estate 
be  ended  during  the  coverture.  Stoddard  v.  Gibbs,  i  Sumner,  263-70; 
In  re  Cregier,  i  Barb.  Ch.  R.  598. 

It  is  among  the  facts  found  by  the  learned  justice  before  whom 
the  action  was  tried,  that  the  possession  of  the  grantee  in  that  deed, 
and  of  his  assign,  was  actual  and  exclusive.  It  is  found,  also,  that 
neither  the  wife  of  the  testator,  nor  the  testator  himself,  did  at  any 
time  after  the  execution  of  that  deed  have  actual  possession  of  the 
premises,  or  receive  the  rents  and  profits  thereof.  And  these  find- 
ings are  upheld  by  the  proof. 

There  is  no  escape  from  the  conclusion  that  there  was  lacking  one 
of  the  essentials  in  a  tenancy  by  the  curtesy  in  favor  of  the  testator. 

This  defect  in  the  plaintiff's  case  being  fatal,  it  is  not  necessary 
that  we  examine  the  other  questions  involved. 

The  judgment  of  the  court  below  should  be  affirmed,  with  costs  to 
the  respondent. 

All  the  judges  concurring,  judgment  affirmed. 


148  HUSBAND   AND   WTFE. 

FOSTER  V.  MARSHALL. 

22   N.    H.   491. —  1^51. 

Writ  of  entry. 

Bell,  J.  The  principal  question  arising  in  this  case  is  as  to  the 
effect  of  the  Statute  of  Limitations  upon  the  demandant's  right  t-f 
action.  It  appeared  that  the  demanded  premises  were  set  off  by  a 
committee  of  partition,  appointed  by  the  Court  of  Probate,  to  Mary 
Foster,  formerly  Mary  Eastman,  the  mother  of  the  demandant,  as 
her  share  of  the  estate  of  her  father,  Samuel  Eastman,  deceased,  on 
the  14th  of  May,  1814.  Mary  Foster  was  then  the  wife  of  Frederick 
Foster,  by  whom  she  then  had  one  or  more  children.  Frederick 
Foster  died  in  1834,  and  his  wife  in  1836.  They  had  six  children, 
whose  rights  are  said  to  be  now  vested  in  the  plaintiff. 

The  defendant  proved  that  in  1817,  one  Morrill  was  in  possession, 
claiming  to  be  the  owner  of  the  demanded  premises.  He  conveyed 
the  same  by  deed,  dated  July  3,  1817,  to  one  Marshall,  who  entered 
and  occupied,  claiming  title,  till  April  30th,  1847,  when  he  conveyed 
to  the  tenant,  who  has  since  remained  in  possession.  The  tenant 
claims  that  he  had  perfect  title  by  thirty  years'  undisturbed  and 
peaceable  possession.  The  demandant  alleges  that  his  right  is  not 
barred,  because  at  the  time  when  the  disseizin  occurred,  in  181 7, 
Mrs.  Foster  was  a  /ei)ie  cmiert,  and  up  to  1834  her  husband  had  an 
estate  for  life  in  the  premises  and  she  had  no  right  of  entry  until  his 
decease,  and  consequently  no  right  of  action  till  then,  and  that  since 
that  time  twenty  years  have  not  elapsed. 

Under  the  Statute  of  Limitations,  which  was  in  force  in  this  state 
before  the  Revised  Statutes,  it  must  be  considered  settled  that  the 
statute  did  not  affect  the  right  of  a  remainderman  or  reversioner, 
during  the  continuance  of  the  particular  estate;  and  that  neither  the 
acts  nor  the  laches  of  the  tenant  of  the  particular  estate  could  affect 
the  party  entitled  in  remainder.  IVells  v.  Frince,  9  Mass.  Rep.  508; 
Wallingford  \ .  Hearl^  15  Mass.  Rep.  471 ;  Tilson  v.  Tho7}ipson,  10  Pick. 
Rep.  359.  No  right  of  entry  or  action  accrued  to,  or  vested  in  the 
heirs  of  the  wife  during  the  continuance  of  an  estate  by  the  curtesy. 
Jackson  V.  Schoonmaker ^  4  Johns.  Rep.  390.  But  the  party  entitled 
is  not  barred  until  the  usual  period  of  limitation  after  the  termina- 
tion of  the  life  estate.  Heathy.  White,  5  Conn.  Rep.  228;  Witham 
V.  Perkins,  2  Greenl.  Rep.  400. 

If,  then,  the  husband  had,  in  this  case,  an  estate  by  the  curtesy, 
or  any  interest  in  the  land  which  would  entitle  his  wife,  who  survived, 
to  be  regarded  as  seized  only  in  remainder  or  reversion,  she  and  her 
heirs  would  have  the  full  period  of  twenty  years  after  the  death  of 


HUSBAND'S    ESTATE    BY   CURTESY.  I49 

the  husband  to  commence  their  action.  To  constitute  a  tenancy 
by  the  curtesy,  the  death  of  the  wife  is  one  of  the  four  things 
required.  The  estate  of  the  husband  is  initiate  upon  the  birth  of 
issue.  It  is  consummate  on  the  death  of  the  wife.  4  Kent's  Com. 
29;  Co.  Litt.  30a.  By  the  intermarriage,  the  husband  acquires  a 
freehold  interest,  during  the  joint  lives  of  himself  and  his  wife,  in 
all  such  freehold  property  of  inheritance  as  she  was  seized  of  at  the 
time  of  marriage,  and  a  like  interest  vests  in  him  in  such  as  she  may 
become  seized  of  during  the  coverture.  The  husband  acquires 
jointly  with  the  wife  a  seizin  in  fee  in  the  wife's  freehold  estates  of 
inheritance,  the  husband  and  wife  being  seized  in  fee  in  right  of  the 
wife.  Gilb.  Ten.  108;  Co.  Litt.  67a;  Palyblank  v.  Hawkins,  1  Saund, 
Rep.  253,  n;  s.  c,  Doug.  350.  This  interest  may  be  defeated  by  the 
act  of  the  wife  alone;  as  if,  at  common  law,  the  wife  is  attainted  of 
felony,  the  lord  by  escheat  could  enter  and  eject  the  husband. 
4  Hawk.  P.  C.  78;  Co.  Litt.  40a;  Vin.  Ab.  Curtesy,  A;  Co.  Litt. 
351a.  After  the  birth  of  issue  the  husband  is  entitled  to  an  estate 
for  his  own  life,  and  in  his  own  right,  as  tenant  by  the  curtesy  initi- 
ate. Co.  Litt.  351a,  30a,  124b;  Schermerhorn  v.  Miller,  2  Cowen's 
Rep.  439.  He  then  becomes  sole  tenant  to  the  lord,  and  is  aloiie 
entitled  to  do  homage  for  the  land,  and  to  receive  homage  from  the 
tenants  of  it,  which  until  issue  born  must  be  done  by  husband 
and  wife.  2  Black.  Com.  126  ;  Litt.  sec.  90  ;  Co.  Litt.  67a, 
30a.  Then  he  may  forfeit  his  estate  for  life  by  a  felony,  which, 
until  issue  born,  he  could  not  do,  because  his  wife  was  the  tenant. 
2  Black.  Com.  126;  Roper,  Hus.  &  Wife,  47.  If  the  husband,  after 
the  birth  of  issue,  make  a  feoffment  in  fee,  and  then  the  wife  dies, 
the  feoffee  shall  hold  the  land  during  the  husband's  life;  because, 
by  the  birth  of  issue,  he  was  entitled  to  curtesy,  which  beneficial  inter- 
est passed  by  the  feoffment.  Co.  Litt.  30a.  If  such  feoffment  is  made 
before  issue  born,  the  husband's  right  to  curtesy  is  gone,  even  though 
the  feoffment  be  conditional  and  be  afterwards  avoided.  And  if  in 
such  case  the  husband  and  wife  be  divorced  a  vinculo  f/mtritnonii,  the 
wife  may  enter  immediately.  Guneley's  Case,  8  Co.  Rep.  73.  The 
husband's  estate  after  issue  born,  will  not  be  defeated  by  the  attainder 
of  the  wife,  for  his  tenancy  continues,  he  being  sole  tenant,  i  Hale, 
P.  C.  359;  Co.  Litt.  351a,  40a;  Bro.  Ab.  Forf.  78. 

The  obvious  conclusion  from  these  views  of  the  nature  of  the  inter- 
est of  a  tenant  by  the  curtesy  initiate  is,  that  such  tenant  is  seized 
of  a  freehold  estate  in  his  own  right,  and  the  interest  of  his  wife  is  a 
mere  reversionary  interest,  depending  upon  the  life  estate  of  the  hus- 
band. The  necessary  result  of  this  is,  that  the  wife  cannot  be  preju- 
diced by  any  neglect  of  the  husband,  and,  of  course,  she  may  bring 


I50  HUSBAND    AND    WIFE. 

her  action,  or  one  may  be  brought  by  lier  heirs,  at  any  time  within 
twenty  years  after  the  decease  of  the  husband,  when  his  estate  by 
the  curtesy,  whether  initiate  or  consummate,  ceases,  and  her  right 
of  action,  or  that  of  her  heirs,  accrues.  In  this  respect  there  is  no 
distinction  between  curtesy  initiate  and  curtesy  consummate.  Mel- 
vin  V.  Locks  6"  Canals,  i6  Pick.  R.  140. 

So  far  as  we  are  aware,  this  principle  has  never  been  questioned, 
where  the  inheritance  of  the  wife  has  been  conveyed  to  a  third  person 
either  by  a  deed  of  the  husband  alone,  or  by  a  deed  executed  by  a 
husband  and  wife,  which  from  some  defect  did  not  bind  the  interest 
of  the  wife.  Miller  v.  Shackleford,  3  Dana  Rep.  289;  Caller  \.  Metzer, 
13  Serg.  &  Rawle  Rep.  356;  Fagaii  v.  Walker,  5  Iredell  Rep.  634; 
McCorryx.  Kiiii^,  3  Humph.  Rep.  267;  Melius  \.  Snmuman,  8  Shepley 
Rep.  201 ;  Meramonw  Caldivell,  8  B.  Mon.  Rep.  32;  Gill  v.  Faimtleroy, 
lb.  177;  Melviti  v.  Locks  &r  Canals,  16  Pick.  Rep.  140.  But  it  has 
been  held  {Melvinw.  Locks  d^  Canals,  16  Pick.  Rep.  161;  Kittridge\. 
Locks  ^  Canals,  17  Pick.  Rep.  246)  that  where  a  disseizin  has  been 
committed  upon  the  wife's  estate,  the  disseizin  is  done  alike  to  hus- 
band and  wife;  that  a  joint  right  of  entry  and  of  action  accrues  to 
both  for  the  recovery  of  it,  and  that  if  such  remedy  is  not  prosecuted 
within  twenty  years,  it  is  l^arred. 

This  is  true  where  the  husband  has  acquired  no  estate  by  the 
curtesy,  and  is  seized  merely  in  the  right  of  the  wife  of  her  estate. 
Such  are  the  cases  of  Giiion  v.  Anderson,  8  Humph.  Rep.  298;  Melius 
V.  Snowman,  8  Shep.  Rep.  201. 

And  if  the  husband  is  tenant  by  curtesy,  as  he  and  his  wife  are 
seized  of  the  fee  in  right  of  the  wife,  the  action  must  be  brought 
by  husband  and  wife,  and  a  joint  seizin  in  fee  alleged  in  them  in 
her  right.  Anon.  Buls.  21.  Their  joint  right  of  action  is  barred  by 
the  lapse  of  twenty  years  after  it  accrues.  But  it  by  no  means  fol- 
lows that  the  reversionary  right  of  the  v/ife,  accruing  in  possession 
after  the  estate  of  her  husband  has  ceased,  is  also  barred.  It  is  well 
settled,  that  the  same  party  may  have  several  and  successive  estates 
in  the  same  property,  and  several  rights  of  entry  by  virtue  of  those 
estates,  and  one  of  those  rights  may  be  barred  without  the  others 
being  affected.  Hunt  v.  Burn,  2  Salk.  422;  Wells  v.  Prince,  9  Mass. 
Rep.  508;  Stevens  \.  Winship,  i  Pick.  Rep.  318;  Tilsonw.  Thompso7h 
10  Pick.  Rep.  359. 

And  every  reason  which  can  exist  in  favor  of  the  right  of  any  rever- 
sioner, applies  equally  in  this  case,  namely,  that  a  reversioner  has, 
as  such,  no  right  of  entry  and  no  right  of  action  during  the  particular 
estate,  and  consequently  is  not  barred  until  twenty  years  after  his  own 
right  of  entry  accrued.     2  Sugd.  V.  &  P.  353;  3  Steph.  x\.  P.  2920, 


ESTATES   BY   THE    ENTIRETY.  15 1 

n.  lo;  9  Mass.  Rep.  508;  i  Pick.  Rep.  318;  15  Mass.  Rep.  471;  10 
Pick.  Rep.  359;  4  Johns.  Rep.  390,  before  cited.  Besides,  the  wife, 
by  reason  uf  her  disability,  can  make  no  entry  to  revest  her  estate 
during  the  coverture.  Litt.  p.  403;  Co.  Litt.  246a.  Coke  says  in 
express  terms,  "after  coverture,  she  (the  wife)  cannot  enter  without 
her  husband." 

In  yackson  v.  yohnsoii,  5  Cow.  Rep.  74,  and  Heath  v.  White,  5  Conn. 
Rep.  228,  this  question  arose,  and  was  decided  in  accordance  with 
our  views,  and  we  think  upon  sounder  principles  than  the  case  in 
Massachusetts,  to  which  we  have  referred. 

We  have  compared  the  provisions  of  the  Revised  Statutes  with 
the  older  statutes,  and  do  not  perceive  that  there  is,  as  to  the  point 
in  question,  any  difference  in  their  effect.  Under  neither  would  the 
plaintiff  propose  to  claim  any  advantage  from  the  proviso.  His 
ground  is  not  that  the  ancestor  was  a  married  woman  when  her 
right  accrued,  but  that  her  marriage  and  the  birth  of  one  or  more 
children  had  vested  a  life  estate  in  her  husband,  and  that  the  dis- 
seizin was  done  to  him,  and  that  no  right  of  action  accrued  to  her 
in  virtue  of  the  reversionary  interest,  under  which  her  heirs  now 
claim,  until  she  became  a  widow,  and  the  husband's  estate  had 
terminated;  and  that  the  action  is  brought  within  twenty  years  after 
that  event.  This  appears  to  us  a  correct  view  of  the  case,  and  of 
the  law;  and  the  verdict  must  therefore  be  set  aside,  and  a  new  trial 
granted. 


Estates  by  the  E^itirety. 
HILES  V.  FISHER. 

144  N.   Y.   306. —  1895. 

A  DEED  of  land  running  to  "William  R.  Fisher,  of  the  town  and 
county  aforesaid,  and  Maria  J.  Fisher,  his  wife,"  was  executed  in 
1866.  Later  he  gave  a  mortgage  on  his  land  to  Hiles,  as  security  for 
a  loan  made  to  him  by  Hiles,  which  mortgage  was  executed  by  Fisher 
alone.  The  mortgage  was  foreclosed  and  the  premises  were  bid  in  by 
Hiles,  but  the  defendants,  Fisher  and  wife,  refused  to  give  posses- 
sion. The  General  Term  adjudged  that,  by  the  foreclosure  sale,  the 
plaintiff  acquired  the  right  to  the  possession  of  the  whole  property 
during  the  joint  lives  of  Mr.  and  Mrs.  Fisher,  and  to  the  fee  in  case 
the  husband  survived  the  wife. 

Andrews,  C.  J.  It  was  decided  in  Berths  v.  Nubian,  92  N.  Y.  152, 
that  the  separate  property  acts  relating  to  the  rights  of  married 


152  HUSBAND   AND    WIFE. 

women  had  not  abrogated  the  common-law  doctrine,  that  under  a 
conveyance  to  husband  and  wife  they  take  not  as  tenants  in  com- 
mon, nor  as  joint  tenants,  but  by  the  entirety,  and  upon  the  death  of 
either  the  survivor  takes  the  whole  estate.  In  that  case  the  hus- 
band had  died,  leaving  his  wife  surviving,  and  the  question  was 
whether  the  wife  as  survivor  took  upon  the  death  of  her  husband 
the  entire  fee  under  the  doctrine  of  the  common  law.  The  question, 
what  change,  if  any,  had  been  wrought  by  the  separate  property  acts 
in  respect  to  the  common-law  rights  of  the  husband  to  control  and 
use  the  property  conveyed  to  husband  and  wife  during  their  joint 
lives,  was  not  considered  or  decided  upon,  but  was  expressly  reserved 
on  the  ground  that  it  was  not  involved  in  the  case  then  before  the 
court.  That  question  is  involved  in  the  present  case  and  must  now 
be  decided. 

The  decision  in  Berths  v.  Nunmi  is  supported  by  the  great  weight 
of  authority  in  other  jurisdictions  in  this  country,  but  in  some  of  the 
states  it  has  been  held  that  as  a  consequence  of  the  statutory  pro- 
visions, substantially  like  those  in  this  state,  conferring  upon  married 
women  the  right  to  take  and  hold  separate  property  to  their  own  use, 
free  from  the  control  of  their  husbands,  as  femes  sole,  estates  by 
entireties  have  been  abrogated  and  turned  into  tenancies  in  com- 
mon. In  the  states  where  this  construction  has  been  put  upon  the 
married  women's  acts,  the  questions  of  the  rights  of  the  parties  to  the 
usufruct  during  their  joint  lives  could  scarcely  arise,  because  it  is 
one  of  the  generally  admitted  results  of  this  legislation  that  the 
common-law  right  vested  in  the  husband  to  the  rents,  profits  and 
use  of  his  wife's  real  estate  during  their  joint  lives  has  been  destroyed. 

It  is,  however,  a  much  more  serious  question  what  the  effect  of 
this  legislation  is  upon  the  common-law  right  of  the  husband  to  the 
usufruct  during  the  joint  lives  of  the  husband  and  wife,  of  lands  con- 
veyed to  them  jointly,  in  those  states  where  it  is  held  that  notwith- 
standing the  new  legislation  a  conveyance  to  husband  and  wife 
retains  its  common-law  character  and  incidents.  If  the  right  of  the 
husband  to  the  use  during  the  joint  lives  of  lands  held  under  this  ten- 
ure was  a  right  growing  out  of  and  incident  to  this  particular  species 
of  tenancy;  in  other  words,  if  it  was  one  of  its  specific  and  essential 
characteristics,  then  it  would  be  difficult  to  segregate  this  right 
from  the  other  rights  incident  to  and  flowing  from  the  tenancy,  and 
to  say  that  while  the  estate  by  entireties  continues  this  feature  of  it 
was  intended  to  be  taken  away.  But  the  taking  away  from  the 
husband  the  usufruct  during  the  joint  lives  of  lands  conveyed  to 
husband  and  wife  would  not  be  inconsistent  with  the  continuance  of 
tenancies  by  entireties,  provided  the  common-law  right  to  the  usu- 


ESTATES   BY   THE    ENTIRETY.  1 53 

fruct  was  not  an  incident  of  the  tenancy,  but  of  the  marital  right 
operating  upon  property  so  held,  as  upon  all  other  real  property  of 
the  wife.  The  grand  characteristic  which  distinguishes  a  tenancy  by 
the  entirety  from  a  joint  tenancy  is  its  inseverability,  whereby 
neither  the  husband  nor  the  wife,  without  the  assent  of  the  other, 
can  dispose  of  any  part  of  the  estate  so  as  to  affect  the  right  of  sur- 
vivorship in  the  other,  i  Bl.  182;  Wash,  on  Real  Prop.  425.  Each 
is  said  to  be  seized  of  the  whole  estate,  and  they  do  not  take  by 
moieties,  and  the  reason  assigned  in  the  old  books  for  this  anomalous 
characteristic  of  this  estate  is  the  legal  unity  of  the  husband  and 
wife,  and  the  incapacity  of  the  wife  to  hold  a  separate  and  severable 
estate  in  lands  under  joint  conveyance  to  both.  The  alleged  inca- 
pacity of  a  wife  to  take  and  hold  lands  conveyed  to  husband  and 
wife  as  joint  tenant  or  tenant  in  common  with  him  seems  inconsistent 
with  the  doctrine  which  has  finally  obtained,  that  by  express  words 
of  a  grant  or  devise  to  husband  and  wife  that  species  of  tenure  would 
be  created.  This  was  pointed  out  in  Miner  v.  Broiun,  133  N.  Y.  308, 
and  authorities  were  cited  to  show  that  where  the  intention  dis- 
•  closed  by  the  deed  or  will  was  to  create  a  tenancy  in  common 
that  estate  would  be  created.  See,  also,  McDermott  v.  Froich, 
15  N.  J.  Eq.  78;  Wales  v.  Coffin^  13  Allen,  213;  i  Wash,  on  Real 
Prop.  425.  There  is  a  tendency  now  to  regard  the  creation  of 
an  estate  by  the  entirety  as  resting  upon  a  rule  of  construction 
rather  than  upon  a  rule  of  law,  and  to  regard  the  intention  as 
disclosed  by  the  deed  or  will  cre:.ting  it  as  the  governing  rule  for 
determining  whether  that  estate  was  created  rather  than  a  joint  ten- 
ancy or  tenancy  in  common.  See  In  re  March,  27  Ch.  Div.  166,  and 
cases  before  cited.  It  was  conceded  under  the  old  law  that  husband 
and  wife,  who  were  joint  tenants  or  tenants  in  common  of  lands 
before  marriage,  remained  so  afterwards.  Coke  on  Litt.  187b.  It 
would  seem  to  follow  that  there  was  no  general  incapacity  in  the 
wife  to  hold  lands  with  the  husband  in  joint  tenancy  or  as  tenant  in 
common.  The  quality  of  the  estate  held  by  the  husband  and  wife  as 
tenants  by  the  entirety,  in  the  aspect  of  its  inseverability,  has  been 
adverted  to.  But  it  is  important,  in  view  of  the  subsequent  discus- 
sion, to  observe  that  the  wife-,  as  well  as  the  husband,  took  an  estate 
under  a  grant  to  both.  Each  was  said  to  be  seized  of  the  whole, 
and  not  of  any  separate  part.  Neither  could  convey  his  or  her  inter- 
est to  the  prejudice  of  the  right  of  survivorship  in  the  other.  The 
common-law,  however,  wholly  ignored  this  principle  of  equality 
between  husband  and  wife  in  regulating  the  rights  of  the  parties  to 
the  enjoyment  of  the  estate  during  the  joint  lives.  They  were  not 
regarded  as  having  a  joint  seizin  or  a  joint  possession  for  the  pur- 


154  HUSBAND    AND    WIFE. 

pose  of  the   use  during  coverture.     The  husband  was  held   to  be 
entitled  to  the  full  control  and  to  take  the  rents  and  profits  of  the 
land  during  the  joint  lives,  to  the  exclusion  of  the  wife,  and  he  had 
power  to  sell,  mortgage  or  lease  for  the  same  period,  and  this  life 
interest  was,  according  to  the  weight  of  autjiority,  subject  to  the 
claims  of  his  creditors.     Barber  v.  Harris,  15  Wend.  615;  yackson  v. 
McCoiimil,    19   Id.    175;  Meeker  v.   Wright,    76   N.  Y.  262;  Bertles  v. 
Nunan,  supra;  Ames\.  N'ormand,  4  Sneed,  683;  Pray  v.  Stebbins,  141 
Mass.  219.    But  the  right  of  the  husband  at  common  law  to  take  the 
rents  and  profits  of  lands  held  by  him  and  his  wife  as  tenants  by  the 
entirety,  during  coverture,  and  to  assign  and  dispose  of  them  during 
that  period,  did  not,  we  apprehend,  spring  from  the  peculiar  nature 
of  this  estate.     He  acquired  no  such  right  by  force  of  the  convey- 
ance itself,  and  it  was  not  an  incident  thereto.     It  was  a  right  which 
followed  the  conveyance  and  inured  to  the  husband  from  the  general 
principle  of  the  common-law  which  vested  in  the  husband,  y«r^  uxoris^ 
the  rents  and   profits  of  his  wife's  lands  during   their  joint  lives. 
2  Kent  Com.  130;  Stewart  on  Husband  and  Wife,  sec.  308.     The  hus- 
band took  the  rents  and  profits  of  lands   held   in  entirety  upon  the 
same  right  that  he  took  the  rents  and  profits  of  her  other  real  estate, 
whether  held  by  a  sole  or  joint  title,  namely,  his  right  as  husband. 
In  none  of  the  definitions  of  tenancies  by  entireties  have  we  found 
any  suggestion  that  this  was  one  of  the  incidents  or  characteristics 
of  such  estates,   and  we  think   it  is   plain,    both   upon   reason  and 
analogy,  that  it  had  its  origin  in  those  harsh  principles  of  common 
law  which  destroyed  for  most  purposes  the  legal  identity  of  the  wife 
and  subjected  her  person  and  property  to  the  control  of  her  husband. 
In  considering  what  effect,  if  any,  the  legislation  in  this  state  has 
had  upon  the  right  of  the  husband  to  the  rents,  profits  and  control  of 
lands  held  by  him  and  his  wife  in  entirety,  during  their  joint  lives, 
it  is  important  to  regard  not  only  the  language,  but  the  spirit  of  the 
new  enactments.     The  sole  purpose  of  the  original  statute  of  1848 
was  to  secure  to  married  women  the  enjoyment  of  their  real  and  per- 
sonal property  which  belonged  to  them  at  the  time  of  their  marriage, 
or  which  they  might  thereafter  acquire  by  gift,  grant  or  bequest  from 
third  persons,  and  to  abrogate  the  common-law  right  of  the  husband 
in  and  to  the  real  and  personal  property  of  the  wife.     The  right  to 
the  rents  and  profits  of  her  lands,  yV/r*?  uxoris,  during  the  joint  lives, 
was  completely  swept  away,   not  by  express  enactment,   but  as  a 
necessary  consequence  of  investing  her  with  the  beneficial  use  of  her 
own  property,   free  from  his  control.     Subsequent  legislation  con- 
firmed her  rights  as  defined  by  the  act  of   1848,  and  enlarged  them 
in  other  directions,  but  the  act  of  1848  was  the  seed  from  which  all 


ESTATES    BY    THE    ENTIRETY.  I5S 

the  subsequent  legislation  sprung.  This  legislation  rendered  un- 
necessary any  longer  the  cumbrous  mechanism  of  settlements  or  resort 
to  the  imperfect  powers  of  courts  of  chancery  to  secure  to  married 
women  the  enjoyment  of  their  own  property. 

In  determining  the  question  now  before  us  too  much  emphasis 
cannot  be  placed  upon  the  fact  that  the  legislation  of  1848  and  the 
subsequent  years  uprooted  the  principle  of  the  common  law,  hoary 
with  age,  which  vested  in  the  husband,  by  virtue  of  the  marriage 
relation,  control  of  the  proprety  of  his  wife  and  the  right  to  exclude 
her  from  its  enjoyment.  If  it  is  still  held,  notwithstanding  this 
legislation,  that  the  husband  takes  the  whole  rents  and  profits  during 
coverture  in  lands  held  in  entirety,  and  may  exclude  the  wife  from 
any  participation  therein,  an  exception  is  allowed,  standing  upon  no 
principle,  and  it  deprives  the  wife,  although  she  has  an  undoubted 
interest  and  estate  in  land,  from  any  benefit  thereof  during  the  lives 
of  both.  There  are,  as  we  can  perceive,  but  two  other  alternatives. 
Either  the  rents  and  profits  follow  the  nature  of  the  estate,  and  can 
neither  be  disposed  of  nor  charged  except  by  the  joint  act  of  both 
husband  and  wife,  which  seems  to  be  the  view  taken  in  McCnrdy  v. 
Canttifig,  64  Pa.  St.  39,  or  the  parties  become  tenants  in  common 
or  joint  tenants  of  the  use,  each  being  entitled  to  one-half  of  the 
rents  and  profits  during  the  joint  lives,  with  power  to  each  to  dispose 
of  or  to  charge  his  or  her  moiety  during  the  same  period,  which  seems 
to  be  the  view  taken  in  Buttlar  v.  Rosenb/ath,  42  N.  J.  Eq.  651.  We 
think  the  rule  adopted  in  New  Jersey  best  reconciles  the  difficulties 
surrounding  the  subject.  The  estate  granted  is  not  thereby  changed. 
It  leaves  it  untouched,  with  all  its  common-law  incidents.  It  deals 
with  the  rents  and  profits  and  the  use  and  control  of  the  estate  during 
coverture  only,  and  gives  to  each  party  equal  rights  so  long  as  the 
question  of  survivorship  is  in  abeyance,  thereby  conforming  to  the 
intention  of  the  new  legislation  to  take  away  the  husband's  right,  y/^r<f 
uxoris,  in  his  wife's  property,  and  to  enable  the  wife  to  have  and 
enjoy  "whatever  estate  she  gets  by  any  conveyance  made  to  her  or 
to  her  and  others  jointly,  and  does  not  enlarge  or  diminish  that 
estate."  The  rule  in  Pennsylvania  not  only  deprives  the  husband 
of  his  common-law  right  to  the  enjoyment  of  the  whole  rents  and 
profits,  but  of  the  enjoyment  of  any  share  thereof,  except  with  the 
concurrence  and  permission  of  his  wife. 

The  conclusion  we  have  reached  requires  a  reversal  of  the  judg- 
ment below  so  far  as  it  adjudges  that  the  mortgage  executed  by  the 
husband  to  the  plaintiff,  and  the  sale  thereunder,  vested  in  the  plain- 
tiff the  right  to  the  possession  of  the  whole  estate  during  the  joint 
lives  of  Mr.  and  Mrs.  Fisher.     The  husband  had  a  right  to  mortgage 


1^6  HUSBAND   AND    WIFE. 

his  interest,  which  was  a  right  t(j  the  use  of  an  undivided  half  of  the 
estate  during  the  joint  lives  and  to  the  fee  in  case  he  survived  his 
wife,  and  by  the  foreclosure  and  sale  the  plaintiff  acquired  this 
interest  and  became  a  tenant  in  common  with  the  wife  of  the  premi- 
ses subject  to  her  right  of  survivorship.  The  opinion  of  the  General 
Term  exhibits  with  great  clearness,  the  reasons  upon  which  it  was 
held  that  a  conveyance  or  mortgage  by  the  husband,  without  restric- 
tive words  binds  the  fee  in  case  he  survives  the  wife.  See  i  Wash. 
Real  Prop.  425;   i  Prest.  Est.  135;  Amcsw  Norinan,,  supra. 

The  judgment  below  should  be  modified  in  accordance  with  this 
opinion  and,  as  modified,  affirmed,  without  costs  to  either  party. 

All  concur  except  Haight,  J.,  not  sitting. 

Judgment  accordingly. 


Gifts  and  Conveyances  between  Husband  and  Wife. 

MOORE  V.  PAGE. 

Ill  U.  S.   117.— 1883. 

This  was  a  creditor's  bill  to  reach  property  conveyed  by  the 
debtor  to  his  wife,  and  have  it  applied  to  the  payment  of  the  debt. 
The  decree  below  sustained  the  conveyance,  from  which  the  creditor 
appealed. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

It  is  no  longer  a  disputed  question  that  a  husband  may  settle  a 
portion  of  his  property  upon  his  wife,  if  he  does  not  thereby  impair 
the  claims  of  existing  creditors,  and  the  settlement  is  not  intended 
as  a  cover  to  future  schemes  of  fraud.  The  settlement  may  be  made 
either  by  the  purchase  of  property  and  taking  a  deed  thereof  in  her 
own  name,  or  by  its  transfer  to  trustees  for  her  benefit.  And  his 
direct  conveyance  to  her,  when  the  fact  that  it  is  intended  as  such 
settlement  is  declared  in  the  instrument  or  otherwise  clearly  estab- 
lished, will  be  sustained  in  equity  against  the  claims  of  creditors. 
The  technical  reasons  of  the  common  law  growing  out  of  the  unity 
of  husband  and  wife,  which  preclude  a  conveyance  between  them 
upon  a  valuable  consideration,  will  not  in  such  a  case  prevail  in 
equity  and  defeat  his  purpose.  Shepardv.  Shepard,  7  Johns.  Ch.  57; 
Hjint  V.  yohnson,  44  N.  Y  27;  Story's  Equity,  sec  1380;  Pomeroy's 
Equity,  sec.  iioi;  Dale  v.  Lincoln^  62  111.  22;  Demingv.  Wiliiafns,  26 
Conn.  226;  Maraman  v.  Maraman,  4  Met.  Ky.  84;  Sims  v.  Rickets, 
35  Ind.  181;  Story  v.  Marshall,  24  Texas,  305;   Thompson  v.  Mills,  39 


GIFTS  AND  CONVEYANCES  BETWEEN  HUSBAND  AND  WIFE.    1 57 

Ind  528.  Such  is  the  purport  of  our  decision  in  yonesv.  Clifton,  loi 
U.  S.  225.  His  right  to  make  the  settlement  arises  from  the  power 
which  every  one  possesses  over  his  own  property,  by  which  he  can 
make  any  disposition  of  it  that  does  not  interfere  with  the  existing 
rights  of  others.  As  he  may  give  it  or  a  portion  of  it  to  strangers,  or 
for  objects  of  charity,  without  anyone  being  able  to  call  in  question 
either  his  power  or  right,  so  he  may  give  it  to  those  of  his  own  house- 
hold, to  his  wife  or  children.  Indeed,  settlements  for  their  benefit 
are  looked  upon  with  favor  and  are  upheld  by  the  courts.  As  we 
said  in  Jones  v.  Clifton:  "In  all  cases  where  a  husband  makes  a 
voluntary  settlement  of  any  portion  of  his  property  for  the  benefit  of 
others  who  stand  in  such  relation  to  him  as  to  create  an  obligation, 
legally  or  morally,  to  provide  for  them,  as  in  the  case  of  a  wife,  or 
children,  or  parents,  the  only  question  that  can  be  properly  asked 
is,  does  such  a  disposition  of  the  property  deprive  others  of  any 
existing  claims  to  it?  If  it  does  not,  no  one  can  complain  if  the 
transfer  is  made  matter  of  public  record  and  be  not  designed  as  a 
scheme  to  defraud  future  creditors.  And  it  cannot  make  any  differ- 
ence through  what  channels  the  property  passes  to  the  party  to  be 
benefited,  or  to  his  or  her  trustees,  whether  it  be  direct  conveyance 
from  the  husband,  or  through  the  intervention  of  others." 

Whilst  property  thus  conveyed  as  a  settlement  upon  the  wife  may 
be  held  as  her  separate  estate,  beyond  the  control  of  her  husband,  it 
is  of  the  utmost  importance  to  prevent  others  from  being  misled  into 
giving  credit  to  him  upon  the  property  that  it  should  not  be  mingled 
up  and  confounded  with  that  which  he  retains,  or  be  left  under 
his  control  and  management  without  evidence  or  notice  by  record 
that  it  belongs  to  her.  Where  it  is  so  mingled,  or  such  notice  is  not 
given,  his  conveyance  will  be  open  to  suspicion  that  it  was,  in  fact, 
designed  as  a  cover  to  schemes  of  fraud. 

In  this  case  there  was  much  looseness;  and  the  transactions 
between  the  husband  and  the  wife  touching  the  property  were  well 
calculated  to  excite  suspicion.  It  is,  therefore,  with  much  hesitation 
that  we  accept  the  conclusion  of  the  Circuit  Court.  We  do  so  only 
because  of  its  findings  that  there  was  no  deception  or  fraud  intended 
by  either  husband  or  wife;  that  the  appellants  were  not  led  to  give 
any  credit  upon  the  property,  but  acquired  their  interest  in  the 
judgment  which  they  are  seeking  to  have  satisfied,  long  after  the 
transaction  complained  of  occurred;  that  the  title  to  the  Dearborn 
avenue  property  was  taken  by  mistake  in  his  name,  and  that  the 
mistake  was  rectified  before  this  litigation  commenced ;  that  the 
bonds  and  notes  in  the  bank  which  the  creditors  seek  to  reach  repre- 
sent the  money  advanced  by  her  from  the  sale  of  that  property  for 


158 


HUSBAND   AND    WIFE. 


the  purpose  of  meeting  an  alleged  deficit  in  his  account  as  adminis- 
trator of  the  estate  of  Maxwell,  and  in  equity  belong  to  that  estate; 
that  the  money  applied  in  satisfaction  of  the  mortgage  upon  the 
Lincoln  avenue  property  was  part  of  the  proceeds  of  that  sale,  and 
that  she  was  entitled  to  have  the  conveyance  to  her  from  Mrs.  Max- 
well treated  as  security  for  that  money.  Such  being  the  case,  the 
creditors  have  no  claim  upon  the  bonds  and  notes  superior  in  equity 
to  that  of  the  Maxwell  estate,  nor  upon  the  Lincoln  avenue  property 
superior  to  that  of  the  wife. 
Decree  affirmed. 

Denio,  J.,  IN  WHITE  V.  WAGER. 

25  N.  Y.   328,   329. —  1862. 

It  is  an  established  doctrine  of  the  common  law  that,  in  conse- 
quence of  the  unity  of  person  between  husband  and  wife,  neither  the 
husband  nor  the  wife  can  grant  the  one  to  the  other,  an  estate  in 
possession,  reversion  or  remainder,  to  take  effect  in  possession  dur- 
ing the  lifetime  of  the  grantor.  (Litt.,  sec.  168;  Co.  Litt.,  3a,  112a; 
Hargrave's  Note  12,  and  cases  referred  to;  Bell  on  Property  of  Hus- 
band and  Wife,  470;  Firebrass  v.  Pennant^  2  Wils.  254;  Shepard  v. 
Shcpard,  7  Johns.  Ch.  57;  Voorhees  v.  The  Presbyterian  Church  of 
Amsterdam,  17  Barb.  103,  and  cases  cited  by  Hand,  J.;  Simmons  v. 
McElwain,  26  Barb.  419;  Dempseyx.  Tylee,  3  Duer,  73.)  There  are 
some  exceptions  to  the  rule  not  necessary  to  be  adverted  to  here,  but 
which  will  be  found  sufficiently  stated  in  the  treatise  of  Mr.  Bell,  at 
the  place  cited.  The  rule  itself  is  one  of  those  stubborn  mandates 
of  the  common  law  which  requires  absolute  obedience  from  the 
courts  whatever  they  may  think  of  the  justice  or  equity  of  its  appli- 
cation in  a  particular  case.  In  the  case  referred  to,  from  Wilson's 
Reports,  where  a  provision  by  a  husband  for  his  wife  was  in  question, 
the  judges  said  they  would  be  glad,  if  possible,  to  get  over  that 
maxim  of  law,  that  "  a  husband  and  wife  are  one  person,"  and,  there- 
fore, cannot  grant  lands  to  one  another.  "  But,"  they  said,  "  we  are 
dealing  with  a  fundamental  maxim  of  the  common  law,  and  might  as 
well  repeal  the  first  section  of  Littleton,  as  to  determine  this  grant 
from  the  husband  immediately  to  the  wife  to  be  good,  and  where 
there  is  not  so  much  as  the  shadow  of  a  person  intervening."  The 
reporter  adds  that  the  postea  was  ordered  to  be  delivered  to  the 
defendant,  *' reluctante  tota  curia.''  But  it  is,  nevertheless,  a  very 
technical  principle;  and  where  the  design  is  for  a  husband  to  con- 
vey to  the  wife,  it  may  be  evaded  in  various  ways,  as  by  a  feoffment 


GIFTS  AND  CONVEYANCES  BETWEEN  HUSBAND  AND  WIFE.    1 59 

to  a  third  person  to  the  use  of  the  wife,  or  a  covenant  with  a  third 
party  to  stand  seized  to  the  use  of  the  wife  {Bell,  id  sup.)  \  or,  where 
the  wife  desires  to  convey  to  the  husband,  the  two  may  join  in  a 
conveyance  to  any  one  whom  they  can  trust  to  convey  immediately 
to  the  husband;  and  thus  the  title  will  be  vested  in  him.  Merriam 
V.  Harsen,  2  Barb.  Ch.  232. 


BUSKIRK,   J.,   IN  SIMS  V.  RICKETS. 
35  Ind.   181,    192. —  1871. 

First.  None  of  the  disabilities  imposed  upon  a  married  woman 
have  attached  to  the  condition  of  a  married  man,  who  is  as  free  to 
receive  the  title  to  the  property  and  dispose  of  it  after  marriage  as 
before,  except  that  he  cannot  by  his  conveyance  affect  the  inchoate 
right  of  the  wife  to  his  real  estate. 

Second.  That  a  conveyance  from  a  husband  directly  to  his  wife 
without  the  intervention  of  a  trustee,  is  void  at  law. 

Third.  That  a  direct  conveyance  from  a  husband  to  his  wife  will 
be  sustained  and  upheld  in  equity  in  either  of  the  following  cases, 
namely:  i.  Where  the  consideration  of  the  transfer  is  a  separate 
interest  of  the  wife,  yielded  up  by  her  for  the  husband's  benefit  or 
that  of  their  family,  or  which  has  been  appropriated  by  him  to  his 
uses.  2.  Where  the  husband  is  in  a  situation  to  make  a  gift  to  his 
wife,  and  distinctly  separates  the  property  given  from  the  mass  of 
his  property,  and  sets  it  apart  to  the  separate,  sole,  and  exclusive 
use  of  his  wife. 

Fourth.  Where  a  wife  advances  money  to  her  husband,  or  the 
husband  is  indebted  to  the  wife  upon  any  valid  consideration,  the 
wife  stands  as  the  creditor  of  her  husband,  and  if  the  conveyance  is 
made  to  pay  or  secure  such  liability,  the  wife  will  hold  the  property 
free  from  the  claims  of  other  creditors,  where  the  transaction  is 
unaffected  by  unfairness  or  fraud. 

Fifth.  Whenever  a  contract  would  be  good  at  law  when  made  with 
trustees  for  the  wife,  that  contract  will  be  sustained  in  equity,  when 
made  with  each  other,  without  the  intervention  of  trustees. 

Sixth.  That  prior  to  the  recent  legislation  in  this  state  author- 
izing married  women  to  hold  real  estate  to  their  separate  use,  when 
a  conveyance  was  made  by  a  stranger  to  a  married  woman,  or  to  a 
trustee  for  her,  in  order  to  give  her  a  separate  use  in  the  property, 
it  was  necessary  that  such  convevance  should  contain  worf^s  cV^^'-'v 
indicating  such  intention,  but  such  words  were  unnecessarv  i.i  r   con- 


l6o  HUSBAND   AND   WIFE. 

veyance  from  a  husband  to  his  wife,  for  the  law  presumed  that  it  was 
intended  for  her  separate  and  exclusive  use. 

Seventh.  That  section  5  of  an  act  entitled  "an  act  touching  the 
marriage  relation  and  liabilities  incident  thereto"  (approved  May 
31st,  1852),  made  all  property  held  by  a  married  woman  at  the  time 
of  her  marriage,  or  acquired  by  her  subsequently,  hers  absolutely, 
and  has  enabled  her  to  use,  enjoy  and  control  the  same  independ- 
ently of  her  husband  and  as  her  separate  property;  and  that  since 
the  passage  of  that  act  a  conveyance  to  a  married  woman  need  not 
contain  words  indicating  that  she  is  to  hold  the  property  to  her 
separate  use. 

Eighth.  That  when  conveyances  from  a  husband  to  his  wife  have 
not  been  sustained  in  equity,  it  has  been  on  account  of  some  feature 
in  them  impeaching  their  fairness  and  certainty,  as  that  they  were  not 
in  the  nature  of  a  provision  for  the  w  ife,  or  when  they  interfered  with 
the  rights  of  creditors,  or  when  the  property  given  or  granted  had 
not  been  distinctly  separated  from  the  mass  of  the  husband's 
property. 

Ninth.  That  in  consequence  of  the  absolute  power  which  a  man 
possesses  over  his  own  property,  he  may  make  any  disposition  of  it 
which  does  not  interfere  with  the  existing  rights  of  others. 

Tenth.  When  a  husband  is  free  from  debt  and  has  no  children, 
and  conveys  property  to  his  wife  for  a  nominal  consideration,  the 
law  will  presume  that  it  was  intended  as  a  provision  for  his  wife. 

Eleventh.  That  a  conveyance  from  a  husband  to  his  wife  which 
is  good  in  equity  vests  the  title  to  the  property  conveyed  in  the  wife 
as  fully,  completely  and  absolutely  as  though  the  deed  had  been  made 
by  a  stranger  upon  a  valuable  consideration  moving  from  the  wife. 

It  appears  by  the  record  in  this  case  that  the  grantor  was  possessed 
of  a  large  property;  that  in  his  will  he  disposed  of  about  $8,000  in 
specific  legacies;  that  the  value  of  the  property  disposed  of  in  the 
residuary  clause  is  not  shown;  that  he  had  no  children,  and  if  he  had 
died  intestate,  his  wife  would  have  inherited  his  entire  estate;  that 
the  rights  of  creditors  were  not  interfered  with  by  the  conveyance 
in  question ;  that  the  great  and  commendable  anxiety  displayed  in 
his  will  for  the  welfare,  comfort  and  happiness  of  his  wife  tends  to 
show  that  the  conveyance  which  he  had  made  a  short  time  before  was 
intended  as  a  provision  for  his  wife;  and  that  in  making  his  will  he 
had  such  conveyance  in  mind,  and  did  not  intend  to  devise  to 
his  brothers  and  sisters  the  property  which  he  had  previously  con- 
veyed to  his  wife. 

We  are  clearly  of  the  opinion  that  the  conveyance  in  question  was 
good  in  equity  and  should  be  sustained. 


DEVISES   AND    BEQUESTS   BY    THE    WIFE.  l6l 

Devises  and  Bequests  by  the    Wife. 

VAN  WINKLE  v.  SCHOONMAKER. 

2  McCart.  (N.  J.  Eq.)  384.— 1862. 

The  ordinary.  The  appeal  is  from  a  decree  from  the  Orphans' 
Court  of  Bergen  county,  admitting  to  probate  the  will  of  Mary  D. 
Van  Winkle,  the  wife  of  the  appellant.  The  will  disposes  of  both 
real  and  personal  estate  of  the  testatrix.  It  is  dated  on  the  ist  of 
February,  1859,  and  was  offered  for  probate  on  the  24th  of  March, 
ensuing,  and  on  that  day  a  caveat  was  filed  by  the  husband  against  the 
probate. 

It  appears,  from  evidence,  that  the  scrivener  was  requested,  by  the 
husband  of  the  testatrix,  to  write  the  will,  and  was  furnished  by 
him  with  instructions  for  that  purpose.  After  the  death  of  the  tes- 
tatrix, a  day  was  fixed  for  the  reading  of  the  will  at  the  house  of  the 
husband.  Notice  was  given  by  him  to  the  heirs  of  his  wife,  and 
the  will  was  read  there  in  his  and  their  presence.  He  knew  of  its 
being  taken  to  the  surrogate's  office  for  probate,  and  made  no 
objection  to  it. 

At  the  time  the  will  was  executed,  both  the  scrivener  and  the  hus- 
band of  the  testatrix  supposed  that  she  had  a  legal  right  to  dispose 
of  her  property,  real  and  personal,  by  will.  The  mistake  was  not 
discovered  until  the  will  was  taken  to  the  surrogate's  office  for  pro- 
bate. The  fact  of  the  testatrix  being  a  married  woman  appearing 
upon  the  face  of  the  will,  the  surrogate  suggested  doubts  in  regard 
to  its  validity.  He  told  the  parties,  however,  that  the  matter  might 
be  arranged,  the  heirs  of  the  testatrix  being  of  age,  by  their  releasing 
to  the  devisee  the  land  devised  to  her  under  the  will.  The  husband 
consented  to  the  probate  of  the  will,  if  the  devises,  as  well  as  the 
bequests,  could  be  carried  into  effect.  The  heirs  refused  to  consent 
to  the  proposed  arrangements,  and  thereupon  the  husband  filed  a 
caveat  digsanst  the  probate.  The  testatrix  and  her  husband  having 
been  married  over  twenty  years,  the  case  stands  entirely  clear  of  the 
operation  of  the  act  of  1852  for  the  better  securing  the  property  of 
married  women. 

As  to  the  real  estate,  the  will  is  clearly  invalid.  A  married  woman 
is  incapable  of  devising  real  estate.  2  Bla.  Com.  498;  Nix.  Dig. 
874,  sec.  3. 

She  is  also  incapable  of  disposing  of  her  chattels  by  will  without 
the  consent  of  her  husband.     Such  a  will,  being  a  mere  nullity,  will 
not  be  admitted  to  probate.     3  Bla.  Com.  498;  4  Coke's  Rep.  51b; 
I  Williams  on  Executors,  45. 
[Du.MESTic  Relations — 11.] 


l62  HUSBAND    AND    Will:. 

But  with  the  consent  of  lier  husband,  the  wife  may  make  a  valid 
will  of  her  personal  estate,  or  even  of  the  goods  of  her  husband. 
Such  consent  maybe  by  parol,  may  be  express  or  implied.  It  may  be 
before  or  after  the  death  of  the  wife,  as  if  a  woman  makes  a  will  of  the 
goods  of  her  husband  and  dieth,  and  after  the  probate  of  the  will  the 
husband  delivers  the  goods  to  the  executor,  he  hath  made  it  a  good 
will,  notwithstanding  he  was  not  privy  to  the  making  thereof.  It 
shall  be  intended,  that  by  the  delivery  of  the  goods  by  the  husband 
to  the  executor  according  to  the  will,  he  assented  to  the  making 
thereof.  Perkins  on  Conveyances,  "Devises,"  ch.  8,  sec.  501; 
I  Swinb.  on  Wills,  80,  part  2,  sec.  9. 

In  the  case  now  under  consideration,  the  will  was  made  with  the 
knowledge  and  consent  of  the  husband  of  the  testatrix.  His  consent 
was  given  by  implication,  both  before  and  after  the  death  of  the 
testatrix.  But  it  is  objected  that  the  consent  is  inoperative,  because 
it  was  given  by  the  husband  under  a  mistaken  apprehension  of  his 
rights.  He  believed  that  his  wife  had  a  perfect  right,  under  the  act 
of  1852,  to  dispose  of  her  property  without  his  consent.  No  con- 
sent, therefore,  it  is  said,  can  be  implied  from  his  acquiescence. 
Even  his  express  consent,  to  be  available,  must  be  an  intelligent 
consent.  However  consonant  the  objection  may  seem  to  our  ideas 
of  justice,  I  do  not  perceive  upon  what  principle  it  can  rest.  As  a 
general  rule,  it  is  clear  that  a  party  cannot  be  relieved,  even  from 
his  contract,  by  reason  of  a  mistake  in  law.  Here  is  a  mere  waiver 
of  his  interest  in  the  property  bequeathed  by  the  wife.  The  husband 
consents  that  the  wife  shall  dispose  of  his  property,  or  of  her  prop- 
erty in  which  he  has  an  interest.  The  consent  is  founded  upon  no 
consideration.  It  is  not  legally  binding.  It  may  be  revoked  at  the 
husband's  pleasure.  It  is  personal  to  the  husband,  and  no  more 
than  a  waiver  of  his  rights  as  her  administrator.  It  can  only  give 
validity  to  her  will  in  case  he  survives  his  wife.  But  how  can  it  be 
said  to  be  void  or  inoperative  by  reason  of  a  mistake  of  his  rights?  If 
no  legal  rights  have  been  acquired  under  the  consent,  it  is  clearly  in- 
operative. If  such  rights  have  been  acquired,  it  is  not  perceived  how 
they  can  be  lost  by  reason  of  an  error  in  law  committed  by  the  husband. 

It  is  further  objected  that  the  consent  is  inoperative,  because  it 
was  a  qualified  assent  —  an  assent  to  the  will  as  an  entirety,  valid  in 
all  its  parts.  This  qualification  was  in  terms  annexed  to  the  con- 
sent made,  at  the  surrogate's  office,  to  the  probate  of  the  will.  But 
no  such  qualification  was  annexed,  in  terms  at  least,  to  the  original 
assent  made  to  the  will  at  the  time  of  its  execution.  If  this  con- 
sent could  be  regarded  as  a  matter  of  contract  —  if,  for  example,  the 
husband,  by  an  express  agreement  consents  that  the  wife  shall  dis- 


THE   wife's    earnings.  163 

pose  of  her  entire  estate  by  will,  provided  she  bequeaths  one-half  of 
it  for  his  benefit,  or  in  such  mode  as  he  should  suggest,  the  failure 
to  comply  with  the  terms  might  terminate  the  consent.  But  it  is 
not  perceived  how  this  doctrine  is  to  operate  in  case  of  an  implied 
consent.  And  if  the  husband  consents  that  the  wife  may  dispose  of 
all  her  property  by  will,  that  consent  cannot  be  invalid  because  a 
part  of  her  property  is  by  law  incapable  of  being  disposed  of  by 
will.  There  is,  in  fact,  no  room  for  the  application  of  either  of  these 
objections.  The  consent  is  not  obligatory,  but  is  revocable  at  the 
pleasure  of  the  husband  at  any  time  before  probate  granted.  It  is 
nothing  more  nor  less  than  a  consent  that  the  will  be  admitted  to 
probate.  If  that  is  revoked,  probate  cannot  be  granted.  2  Swinb. 
on  Wills,  81,  part  2,  sec.  9;  Henly  v.  Phillips,  2  Atkins,  49;  i  Roper  on 
Husb.  and  Wife,  170;  i  Bright  on  Husb.  and  Wife,  65;  i  Williams 
on  Ex'rs,  46;   i  Jarman  on  Wills,  31. 

Some  of  the  cases  seem  to  maintain  a  different  doctrine.  Brook 
v.   Turner,  2  Mod.  172. 

It  is  reported  to  have  been  held  by  Sir  H.  Jenner  Fust,  in  Maas 
V.  Sheffield,  that  if  after  the  death  of  the  wife  the  husband  does  assent 
to  a  particular  will,  he  is  bound  by  that  assent;  and  as  a  consequence 
of  that  decision,  it  is  stated  by  elementary  writers,  that  if,  after  the 
death  of  the  wife,  the  husband  acts  upon  the  will  or  once  agrees  to 
it,  he  is  not,  it  seems,  at  liberty  to  retract  his  assent  and  oppose  the 
probate,  i  Williams  on  Ex'rs,  47,  and  note  w;  i  Bright,  65,  and 
note  d.  As  applied  to  a  particular  state  of  facts,  that  may  be  true. 
If,  for  instance,  the  executor,  in  advance  of  the  probate,  with  the 
assent  of  the  husband,  dispose  of  the  property  bequeathed  to  third 
persons,  or  if  rights  are  otherwise  acquired  under  the  will,  it  may 
well  be  that  the  husband  would  not  be  permitted  to  retract  his  assent 
and  oppose  the  probate.  But  this  will  be  found  not  to  affect  the  gen- 
eral principle  that  the  consent  is  revocable  by  the  husband  at  any 
time  before  probate. 

The  decree  of  the  Orphans'  Court  must  be  reversed. 


The  Wife  s  Earnings. 

PRESCOTT  V.   BROWN. 

23  Me.  306. — 1843. 

Shepley,  J,  The  plaintiff,  being  the  widow  of  David  Prescott, 
deceased,  brings  this  suit  to  recover  for  services  performed  in  wash- 
ing for  the  defendant,  while  she  was  a  feme  covert  residing  with  her 
husband. 


164  HUSBAND    AM)    WIFE. 

The  counsel  for  the  phiintiff  contends  that,  she  being  the  meritori- 
ous cause,  an  action  might  have  been  maintained  for  those  services 
in  the  name  of  the  husband  and  wife  during  the  Hfe  of  the  hus- 
band. And  that,  when  the  wife  may  be  joined,  the  cause  of  action 
survives  to  her.  The  elementary  writers  cited  appear  to  sustain 
these  positions,  with  this  qualification,  that  she  may  be  joined,  when 
the  cause  of  action  being  for  her  personal  labor,  there  is  an  express 
promise  to  her.  In  the  case  of  Pratt  ^  ux.  v.  Taylor,  Cro.  Eliz.  61, 
an  action  by  husband  and  wife  was  maintained  on  an  express  promise 
to  the  wife  by  the  defendant,  that  he  would  repay  to  her,  if  he  did 
not  marry  her  daughter,  ten  pounds,  which  he  had  before  received 
from  her.  In  the  case  of  Brashford  \.  Buckingham  6^  ux.,  Cro.  Jac. 
77  and  205,  the  action  was  sustained  by  a  husband  and  wife,  on  the 
promise  made  to  the  wife  to  pay  her  for  her  services  in  curing  a 
wound.  And  in  Weller  v.  Baker,  2  Wil.  424,  this  case  is  approved, 
and  it  is  stated,  that  a  like  doctrine  was  held  in  the  case  of  Hobnes 
C-"  ux.  V.  Wood.  And  it  is  stated  by  Comyn,  that  where  the  wife 
cannot  have  an  action  for  the  same  cause,  if  she  survives  her  hus- 
band, the  action  shall  be  by  the  husband  alone.  Com.  Dig.  Baron  and 
Feme,  W.  In  Buckley  v.  Collier,  i  Salk.  114,  it  was  decided  that  the 
husband  and  wife  could  not  maintain  an  action  for  the  labor  of  the 
wife  in  making  a  peruke,  without  an  express  promise  to  the  wife.  If 
these  authorities  were  admitted  to  state  the  law  in  all  respects  with 
entire  accuracy,  the  result  would  seem  to  be,  that  the  wife,  surviving 
her  husband,  would  have  the  right  to  recover  for  her  personal  labor, 
performed  for  another  during  the  coverture,  if  payment  had  not  been 
made  to  the  husband,  and  to  apply  the  proceeds  to  her  own  use,  if  she 
could  prove  an  express  promise  to  herself.  And  her  right  of  property  in 
such  personal  labor  would  depend  upon  her  obtaining  such  a  promise. 

By  the  common  law  the  service  and  labor  of  the  wife  during  co- 
verture becomes  the  property  of  the  husband  for  their  support,  for 
which  he  is  bound  to  provide.  It  is  difficult  to  perceive  how  she 
can  be  said  to  have  a  property  in  such  personal  labor,  which  survives 
to  her,  when  the  right  of  property  therein  was  appropriated  to  the 
husband  by  the  marriage.  And  in  the  case  of  Buckley  v.  Collier,  it  is 
said,  "  the  advantage  of  the  wife's  work  shall  not  survive  to  the  wife, 
but  goes  to  the  executors  of  the  husband."  And  no  case  has  been 
noticed  in  which  a  different  doctrine  has  been  held.  But  whatever 
maybe  the  rule  of  law  in  this  respect,  the  plaintiff  cannot  maintain 
this  suit  without  proving  an  express  promise  to  herself,  and  the 
testimony  does  not  furnish  any  such  proof. 

Plaintiff  nonsuit.' 

'  See  also  Boozer  v.  Addison,  ante,  p.  121. 


THE   WIFE'S   SEPARATE    ESTATE    IN    EQUITY.  j^g 

The  Wifes  Separate  Estate  hi  Equity. 
NIX  V.  BRADLEY. 

6  Rich.  Eq.  (S.  C.)  43.— 1853. 

Dargan,  Ch.  There  are  three  modes  of  disposition,  by  which  a 
separate  estate  may  be  created  in  favor  of  a  married  woman.  First, 
where  technical  words  are  employed ;  as  in  instances  where  the  estate 
is  given  for  "  the  sole  and  separate  use  of  the  wife."  Second,  where 
the  estate  is  not  given  after  this  form,  but  the  marital  rights  are 
excluded  by  express  words.  For  example,  where  an  estate  is  given 
to  the  wife,  but  not  to  be  subject  to  the  power,  control  or  liabilities 
of  the  husband ;  or,  where  the  marital  rights  are  restricted  by  words 
of  a  similar  import.  Third,  where  the  marital  rights  are  excluded 
by  implication;  as  in  instances  where,  by  the  instrument  creating 
the  estate,  the  wife  has  the  power  to  do  acts,  to  exercise  a  control,  and 
to  make  disposition  of  the  property,  which  are  inconsistent  with  the 
marital  rights.  It  is  thought  that  the  most,  if  not  all,  the  cases  of  this 
description  may  be  brought  within  one  or  the  other  of  these  classi- 
fications. 

The  testator,  David  Cave,  by  his  will, 'directed  all  his  estate,  real 
and  personal,  to  be  sold  by  his  executors.  One  sixth  part  thereof 
he  gave  to  his  son  Matthiew  Cave,  absolutely,  and  for  ever.  He 
then  proceeds  to  declare  as  follows:  "The  other  remaining  five 
parts  of  my  property,  real  and  personal,  I  bequeath  to  my  son  Mat- 
thiew Cave,  in  trust  nevertheless,  for  the  use,  benefit  and  interest 
of  my  daughters,  Dorcas  Kirkland,  Elizabeth  Nix,  Martha  Cave, 
Nancy  Cave  and  Mary  Cave,  in  equal  proportions,  share  and  share 
alike,  and  not  subject  to  the  debts,  contracts,  or  sale  of  their  pre- 
sent, or  future  husband."  This  constituted  a  separate  estate  in  the 
testator's  daughters  under  the  second  classification  of  such  cases 
above  enumerated. 

In  January,  1835,  the  testator's  land  and  some  of  the  personal 
estate  was  sold  for  the  purpose  of  partition.  And  a  division  was  made 
among  the  parties  entitled,  of  the  remaining  chattels,  including  the 
negroes.  The  presiding  chancellor  in  his  report  of  the  case  states 
that,  "on  the  nth  February,  1836,  Martha  Cave,  (then  sui Juris) 
gave  Matthiew  Cave  a  receipt  for  $768.69,  in  full  of  her  share;  with 
a  schedule  prefixed,  showing  that  she  received  a  slave  named  Peter, 
*^t  $550,  cash  $50,  and  other  articles  mostly  consumable  in  the  use. 
In  April,  1835,  Martha  Cave  sold  Peter  to  Jesse  Nix  for  $600;  and 
in  April,  1835,  purchased  from  A.  J.  Nix  for  $650,  two  slaves,  Chloe 


l66  HUSl'.AXl)    AM)    Will:. 

and  her  chiUl  Richard  aiul  lO(jk  a  bill  of  sale  in  her  own  name. 
Chloe  has  since  had  four  children,  Cuffee,  Bob,  Adam  and  Nancy. 
On  the  6th  December,  1838,  the  defendant  Robert  Bradley  inter- 
married with  Martha  Cave,  she  being  then  about  thirty-two  years  of 
age.  At  the  time  of  the  marriage,  according  to  the  responsive  state- 
ments of  the  answer  (and  there  was  no  opposing  evidence),  she  was 
possessed  of  the  two  slaves,  Chloe  and  Richard,  a  horse,  about  eight 
head  of  hogs,  seven  cattle,  and  two  beds  and  furniture,  and  nothing 
more.  And  all  of  these  chattels,  except  the  two  slaves,  have  long 
ago  been  dead,  or  consumed  in  the  use.  The  defendant  admits 
that  after  the  marriage  he  received  certain  small  sums  of  money, 
appearing  by  proof,  to  be  about  $300:  represented  to  be  on  account 
of  his  wife's  share  of  her  father's  estate;  but  alleges  that  the  whole 
was  expended  during  the  coverture.  It  further  appears  that  the 
defendant  received  from  Matthiew  Cave,  chattels  valued  at  $32  and 
money  to  the  sum  of  $175,  as  his  wife's  share  of  the  estate  of  Nancy 
Cave,  one  of  the  testator's  daughters  who  died  without  issue;  also 
the  sum  of  $34.40,  in  full  of  the  share  of  himself  and  wife  in  the 
estate  of  John  Cave,  deceased,  who  is  stated,  but  not  proved,  to 
have  been  a  debtor  of  the  testator."  Martha  Bradley  died  29th 
June,  185 1,  and  the  plaintiff,  A.  J.  Nix,  administered  on  her  estate 
in  January,  1852.     This  bill  was  filed  on  nth  May,  1852. 

The  plaintiffs  claim  from  the  defendant  on  account  of  the  estate 
which  his  deceased  wife,  Martha  Bradley,  derived  under  her  father's 
will,  on  the  ground,  that  it  was  her  separate  estate,  upon  which  the 
marital  rights  did  not  attach;  and  that  Martha  Bradley  dying  intes- 
tate, said  estate  was  distributable  among  her  next  of  kin  under  the 
statute  of  distribution.  I  have  already  shown  that  the  estate  which 
Martha  Bradley  derived  under  her  father's  will  was,  in  its  inception, 
her  separate  estate.  But  there  may  be  a  fee  in  an  equity  as  well  as 
in  a  legal  estate;  and  Martha  Bradley  took  an  absolute  interest  in 
the  equity.  There  was  no  limitation  or  remainder.  The  plaintiffs 
had  no  estate  in  the  property,  and  they  can  only  claim  in  the  way  of 
succession  by  or  through  her. 

The  question  then  occurs  can  difeme  sole,  who  is  sui  juris,  alienate 
her  separate  estate  ?  Can  she  encumber  it  ?  Can  she  subject  it  to 
the  payment  of  debts;  devise  or  bequeath  it?  Can  she  make  any 
disposition  of  it  which  a  man,  under  similar  circumstances  would  be 
authorized  to  make?  There  cannot  be  a  doubt,  that  on  both  princi- 
ple and  authority,  all  of  these  questions  must  be  answered  in  the 
affirmative.  One  of  the  most  valuable  incidents  in  the  institution 
of  property,  is  the  right  of  alienation  ;  and  no  citizen  of  the  country, 
male  or  female,  who  is  under  no  disability,  can  be  restrained  in  the 


THE   wife's    separate    ESTATE    IN    EQUITY.  167 

exercise  of  the  right,  without  a  violent  assault  upon  the  very  nature 
of  the  institution.  There  is  no  form  of  conveyance  which  ingenuity 
can  devise,  by  which  a  man,  who  is  under  no  disability,  can  have 
property  without  the  power  to  convey  and  assign  his  right,  whatever 
that  may  be.  The  same  principle  applies  in  full  force,  and  all  the 
reasoning  on  which  it  is  founded,  to  a  feme  sole  under  the  like  circum- 
stances. Woodmeston  v.  Walker,  2  Russ.  &  M.  197;  Brmvn  v.  Pocock^ 
2  Russ.  &  M.  210;  s.  c,  5  Sim.  663;  Jones  v.  Salter,  2  Russ.  &  M.  208; 
Barton  v.  Briscoe,.  Jac.  603.  The  married  woman  is  secure  in  the 
enjoyment  of  her  separate  estate,  without  the  power  of  alienation, 
and  of  subjecting  it  to  payment  of  her  debts  on  the  ground  that  she 
\s  under  the  disability  of  coverture,  and  can  make  no  contracts,  or 
assignments  that  are  binding  upon  her  estate,  further  than  is 
authorized  by  the  instrument  creating  it.  If  these  views  be  not  cor- 
rect, 2.  feme  sole  with  a  separate  estate,  though  it  be  in  fee,  would  be 
denied  the  enjoyment  of  her  property  with  the  incidents  belonging 
to  it,  and  which  make  it  valuable.  She  would  not  be  able  to  devise, 
bequeath,  sell  or  give  it,  though  she  lived  in  single  blessedness  to 
the  end  of  her  life.  There  is  no  reason  in  such  a  restraint  upon 
the  rights  of  property. 

The  authorities  which  I  will  now  cite  abundantly  show  that  I 
have  not  stated  the  principle  too  strongly.  "  It  is,  at  length,  clearly 
established,"  said  Mr.  Lewin,  "that  3.  feme  sole  may  dispose  abso- 
lutely of  a  gift  to  her  separate  use;  and  the  principle  is  briefly  this, 
that  whenever  a  person  possessing  an  interest,  however  remote,  is 
sui juris,  that  person  cannot  be  restrained  by  any  intention  of  the 
donor,  from  exercising  the  ordinary  rights  of  proprietorship."  Lew. 
on  Trust,  151.  Sir  Edward  Sugden,  in  treating  of  a  woman's  power 
over  her  separate  estate,  prior  to  marriage,  says,  "her  power  of 
alienation,  while  discovert,  is  denied  by  none."  i  Sugden  on  Pow- 
ers, 202.  Mr.  Bell  says,  "if  property  be  given  to  the  separate  use 
of  a  woman  who  is  not  married  at  the  date  of  the  gift,  with  a  clause 
in  restraint  directed  against  any  future  marriage,  she  will  have  all 
the  rights  of  a.  feme  sole,  and  an  absolute  ownership  while  she  con- 
tinues sole.  And  upon  her  application,  the  property  will  be  trans- 
ferred to  her  absolute  use."  Bell  on  the  Property  of  Husband  and 
Wife,  508.  Mr.  McQueen  says,  "as  the  separate  use  cannot  exist 
but  in  the  married  state,  so  neither  can  restraint  upon  anticipation. 
There  is  no  form  of  limitation  whereby  a  single  woman  can  be  pre- 
vented from  squandering  her  income,  or  dissipating  her  money.  If, 
then,  property  become  invested  in  her  while  discovert,  although  the 
instrument  may  express  that  the  gift  is  to  be  to  her  separate  use, 
and  subject  to  restraint  upon  alienation,  she  may  nevertheless  dis- 


l68  HUSBAND   AND    WIFE. 

pose  of  it  absolutely;  because  property  cannot  be  given  \.o  \i.  feme 
sole,  any  more  than  to  a  man,  without  being  subject  to  the  incidents 
which  property  implies;  and  one  of  these  is  the  unlimited  power  of 
disposal."  I  McQueen  on  Husband  and  Wife,  313.  In  Tullett  v. 
Artnstrorn:;,  i  Beav.  i;  s.  c,  4  My.  &  Cr.  390,  Lord  Langdale  held, 
that  the  alienation  of  her  separate  estate  by  a  feme  sole  was  valid. 
"The  restraint,"  he  says,  "is  annexed  to  the  separate  estate  only 
during  coverture.  Whilst  the  woman  is  discovert,  the  separate 
estate,  whether  modified  by  restraint  or  not,  is  suspended,  and  has 
no  operation,  though  it  is  capable  of  arising  upon  the  happening  of 
a  marriage."  This  decision  was  on  appeal  affirmed  by  Lord  Cotten- 
ham,  4  My.  &  Cr.  405.  Sir  John  Leach  twice  held  that  a  woman, 
while  sole,  could  not  assign  her  separate  estate;  and  in  both  cases 
his  decisions  were  reversed  by  Lord  Brougham,  who  held  that  the 
assignments  were  valid,  i  Sug.  Pow.  202.  {IVoodmestoti  \ .  Walker^ 
2  Russ.  &  M.  197;  Brown  v.  Poeoek,  2  Russ.  &  M.  210.) 

It  is  clear,  therefore,  that  all  the  dispositions  which  Martha  Brad- 
ley made  of  her  separate  estate  before  her  intermarriage  with  the 
defendant  are  valid,  and  did  not  constitute  any  separate  estate  in 
her  at  the  time  she  entered  into  the  coverture.  And  this  includes 
Chloe  and  Richard,  and  the  other  issue  of  Chloe.  She  sold  Peter, 
as  she  had  a  right  to  do.  With  the  purchase  money  of  Peter,  the 
chancellor  says,  (he  is  satisfied  from  the  evidence),  she  bought  Chloe 
and  Richard.  But  she  took  the  title  in  her  own  name,  discharged 
of  all  trust,  or  restriction,  thus  renouncing  the  separate  estate. 
These  negroes  were  never  a  part  of  the  separate  estate,  and  the 
marital  rights  attached  upon  them.  But  the  chancellor  says,  "the 
defendant  admits  that,  after  the  marriage,  he  received  several  small 
sums  of  money,  appearing  by  proof  to  be  about  $300,  represented  to 
be  on  account  of  his  wife's  share  of  her  father's  estate;  but  alleges 
that  the  whole  was  expended  during  the  coverture." 

Upon  this  state  of  facts,  the  question  is  raised,  whether  the  sepa- 
rate use  does  not  continue  as  to  that  portion  of  the  estate  which  was 
not  disposed  of  by  the  wife  while  sole,  and  which  was  received  by 
the  husband  after  the  marriage?  And  if  so,  is  the  husband  who  has. 
received  the  same  liable  to  account?  It  is  asked  with  much  plausi- 
bility and  force,  if  the  woman,  while  sole,  can  sell  or  even  give  away 
her  separate  estate,  why  may  not  the  husband  take  it  as  a  purchaser 
for  valuable  consideration  ?  "  Has  the  court  any  authority  to  alter 
the  nature  of  that  property  on  her  subsequent  marriage,  and  limit 
the  gift  so  as  to  exclude  the  rights  of  the  husband  ?  "  Coleridge  Sol. 
•ji  Tullett  V.  Armstrofii^,  i  Be  v.  11. 

The  principle  asserted  in  the  foregoing  proposition  is  not  without 


THE    wife's   separate    ESTATE    IN    EQUITY.  169 

the  support  of  authority.  Massey  v.  Parker,  2  My.  &  K.  174;  Ne7V- 
ton  V.  Reid,  4  Sim.  141.  It  seems  at  no  late  day  to  have  been  a  dis- 
puted question  in  the  English  Court  of  Chancery,  i  Mad.  Ch.  473; 
Pmvlet  V.  De/aval,  2  Ves.  Sen.  679;  Clinton  v.  Hooper,  5  Bro.  C.  R. 
201;  Lynn  v.  Ashton,  i  Russ.  &  M.  188.  It  would  be  proper  here 
to  remark  that  between  the  law  of  England  and  that  of  South  Caio- 
Hna  there  is  an  important  distinction  as  to  the  power  of  a  mar- 
ried woman  over  her  separate  estate.  Whilst  in  the  former  country 
the  wife  has  all  the  rights  incident  to  property,  with  the  absolute 
power  of  disposal,  even  in  favor  of  her  own  husband,  except  so 
far  as  she  is  restricted  by  the  instrument  which  creates  the  estate; 
in  this  state,  the  wife  having  a  separate  estate,  has,  during  covert- 
ure, no  power  of  alienation  over  the  property  further  than  she  is 
authorized  by  the  instrument  under  which  she  derives  it.  Without 
bearing  in  mind  this  distinction,  the  English  cases  upon  this  interest- 
ing subject  will  not  be  so  well  understood.  Thus  they  hold  there 
that  a  married  woman,  having  a  separate  estate  without  any  restraint 
upon  the  power  of  disposal,  may  do  with  it  as  she  pleases;  may 
exercise  all  the  rights  of  ownership.  It  is  otherwise  where  there  is 
a  restraint  upon  alienation.  In  such  instances,  the  wife,  in  her 
use  of  the  estate,  must  conform  to  Lhe  conditions  which  the  restraint 
imposes  upon  her.  It  is  the  latter  class  of  cases  that  will  apply  in 
questions  arising  in  our  courts,  where  the  restraint  exists  in  all  cases 
of  separate  estate  where  power  is  not  given  to  the  wife;  and  such 
restraint  is  implied  from  the  nature  of  the  estate.  In  Squire  \.  Dean, 
4  Bro.  C.  C,  326,  it  was  held,  that  if  the  husband  is  permitted  by 
the  wife  to  receive  her  separate  estate,  and  it  is  applied  to  the  main- 
tenance of  the  family,  she  will  be  presumed  to  have  assented  to  such 
application  of  it.  And  in  Beresford  v.  The  Arehbishop  of  Armagh,  13 
Sim.  643,  it  was  held,  that  if  the  husband  receives  the  wife's  sepa- 
rate estate,  and  the  fact  be  known  to  the  wife  without  the  assertion 
of  any  claim  or  objection  on  her  part,  a  gift  to  the  husband  will  be 
presumed. 

The  defendant,  Robert  Bradley,  says,  by  way  of  defense,  that  the 
portion  of  the  separate  estate  of  his  wife  received  by  him  was  ex- 
pended during  the  coverture.  It  does  not  appear  that  it  was 
expended  in  support  of  the  family;  nor  by  the  express  or  implied 
assent  of  the  wife.  And  even  by  the  English  case  the  husband, 
under  such  circumstances,  would  be  held  to  account  on  the  death  of 
the  wife.  But  conceding  that  it  was  satisfactorily  proved,  that  the 
property  was  expended  for  the  support  of  the  wife,  or  was  actually 
given  by  her  to  the  husband,  or  to  a  stranger,  the  principle  of  the 
class  of  cases  last  referred  to  will  not  apply  in  this  state.     Those  are 


170  Iirsr,AM>    AM)    WIFE. 

cases  in  which  the  wife's  power  over  her  separate  estate  was  not 
restricted.  They  are  not  in  point  here,  where  the  wife  can  in  no 
case  sell,  or  give,  her  separate  estate,  unless  it  be  coupled  with  a 
power  of  disposal,  or  appointment  to  uses. 

When  a  fenw  sole  has  a  separate  estate,  with  restraint  upon  alien- 
ation, in  England,  or  without  it  in  this  state  (where  the  restraint  is 
always  implied),  though  the  restriction  be  suspended,  and  the  power 
of  alienation  exists  unfettered,  while  she  is  a  discovert,  as  soon  as 
she  marries,  the  restraint  is  called  into  activity,  and  operates  to  the 
exclusion  of  the  marital  rights.  This  doctrine  was  fully  recognized 
in  Tulh'tt  V.  A/mstrong,  i  Beav.  i.  And  on  appeal  it  was  affirmed 
by  Lord  Cottenham.  s.  c,  4  My.  &  Cr.  377,  392.  It  would  seem, 
however,  that  "  the  moment  she  becomes  again  single,  the  separate 
use,  and  the  restraint  in  anticipation,  will  both  cease,  though  still 
capable  of  revival,  and  subject  to  extinction,  upon  subsequent  mar- 
riages, and  subsequent  discovertures,  toties  quoties.'"  McQ.,  H. 
&  W.,  314;  Jones  V.  Salter,  2  Russ.  &  M.  208;  Barton  v.  Briscoe, 
Jac.  603.  In  Clark  v.  Jacques,  i  Beav.  36,  an  annuity  was  given 
by  will  to  Sarah  Grace  Hitchcock,  who  was  2i  feme  sole,  at  the  death 
of  the  testator,  to  her  separate  use,  and  with  a  restraint  upon  aliena- 
tion. After  the  death  of  the  testator,  Sarah  Grace  Hitchcock  inter- 
married with  Thomas  Jacques,  who  died  leaving  Sarah  Grace 
surviving  him.  She  afterwards  intermarried  with  Richard  Hitch- 
cock. The  said  Richard  Hitchcock  and  Sarah  Grace  Hitchcock 
having  sold  the  annuity  to  one  Ireneus  Mahew,  united  in  a  petition  to 
the  court  for  a  confirmation  of  the  sale.  No  disposition  of  the 
annuity  was  "made  while  she  was  discovert.  Lord  Langdale,  master 
of  the  rolls,  refused  the  petition,  holding  that  the  separate  use  with 
restraint  against  alienation  attached  upon  the  estate  during  the 
second  coverture.  See  Scarborough  v.  Borman,  i  Beav.  34;  Dixon  v. 
Dixon,  I  Beav.  40. 

The  reason  why  a  feme  sole  having  a  separate  estate,  even  with  a 
restraint  upon  alienation,  may  sell,  or  give  it  to  a  stranger,  and  yet 
the  husband  may  not  take  it  as  a  purchaser  upon  the  valuable  con- 
sideration of  marriage,  has  been  placed  upon  various  grounds.  The 
distinction  is  anomalous.  By  some  it  has  been  attempted  to  be  based 
upon  the  assent  tacitly  given  by  the  husband  when  he  marries  a 
woman  with  a  separate  estate.  Lord  Cottenham  in  Tullett  v.  Arm- 
strong, 4  My.  &:  Cr.  404.  But  as  reasoned  by  his  lordship,  resting 
the  claim  of  the  wife  upon  such  assent  of  the  husband,  it  is 
assumed  that  without  such  assent  it  would  not  exist.  Neither  could 
the  assent  of  the  husband  be  implied  without  notice  of  the  set- 
tlement, and  thus  would  be  raised  an  issue  of  fact  as  to  the  notice  in 


THE    WIFE  S    SEPARATE    ESTATE    IN    EQUITY.  171 

almost  every  case.  Based  upon  such  grounds,  the  protection  which 
this  court  could  give  to  the  separate  estates  of  married  women  would 
be  very  inadequate  and  uncertain.  Others  have  supposed  the  title 
of  the  husband  as  a  purchaser  to  be  defective,  because  the  title  is 
not  consummated  until  the  solemnization  of  the  marriage;  after 
which,  the  wife  is  incompetent  to  contract,  or  to  confer  title,  by 
reason  of  the  coverture.  This  reason  is  also  illogical  and  inconsist- 
ent; for  by  the  same  process  of  reasoning  it  could  be  shown  that 
the  wife  would  be  incompetent  by  her  marriage  to  confer  title  upon 
her  husband  of  her  chattels  in  possession.  The  doctrine  must  be 
allowed  to  be  an  anomaly  —  an  exception  to  the  usual  incidents  of 
property — a  creature  of  the  court  of  equity,  adopted  for  the  pre- 
servation of  the  separate  estates  of  married  women,  without  which 
they  would,  in  many  instances,  be  endangered  and  destroyed  by  the 
marital  power  and  influence.  It  is  surely  within  the  competency  of 
a  court,  where  the  idea  of  separate  estates  originated,  and  where 
rights  under  them  are  enforced,  contrary  to  the  rights  of  the  hus- 
band as  recognized  in  courts  of  law,  to  modify  the  rules  regulating 
such  estates,  and  to  amplify  their  defences,  so  that  they  may  be 
effectually  preserved  for  the  purposes  for  which  they  are  created. 
Besides  this,  the  aim  of  the  donor  in  creating  a  separate  estate  is 
always  directed  against  the  marital  rights.  Without  marriage,  no  such 
estate  would  be  created;  neither  could  it  be.  It  can  only  exist  in 
the  marriage  state;  for,  otherwise,  it  has  no  meaning.  The  court, 
therefore,  simply  carries  out  the  intentions  of  the  donor,  and  the 
purpose  of  this  institution,  when  it  considers  a  feme  sole  competent 
to  dispose  of  her  separate  estate  while  she  is  sole;  and  if  not  so 
alienated,  in  disallowing  the  marital  rights  of  the  husband  after  the 
marriage. 

The  sum  for  which  the  defendant  will  be  responsible,  under  the 
foregoing  principles,  will  be  small;  not  exceeding  $300,  if  so  much. 
The  solicitor  for  the  defendant,  in  this  branch  of  the  case,  has  quoted 
the  law  maxim,  ''  de  minimis  non  curat  lex.''  The  maxim  has  never 
applied  to  money  demands.  Nor  do  I  know  that  the  sum  in  contro- 
versy would  be  regarded  by  the  parties  claiming  it  as  insignificant. 
Be  this  as  it  may,  we  are  not  at  liberty  to  withhold  a  remedy  for  the 
enforcement  of  any  claim,  however  small,  which  is  presented  in 
proper  form,  and  to  which  the  party  claiming  is  entitled  by  the  law 
of  the  land. 

It  is  ordered  and  decreed  that  the  circuit  decree  be  modified.  It 
is  further  ordered  that  the  defendant  is  liable  to  account  to  the 
administrator  of  his  deceased  wife,  Sarah  Bradley,  for  all  sums  of 
money  and  choses  in  action;    also,  for  all  other  property  of  the  tes- 


\-2  HUSBAND    AND    WIFE. 

tator,  other  than  that  which  vvas  consumed  in  the  use,  and  which 
have  come  into  the  hands  of  the  said  defendant  during  his  coverture 
with  the  said  Sarah  Bradley;  together  with  interest  upon  the  value 
of  the  same  from  her  death.  It  is  further  ordered  and  decreed, 
that  the  commissioner  take  an  account  of  the  same,  and  report  to 
the  Circuit  Court.  In  all  other  respects  it  is  ordered  and  decreed, 
that  the  circuit  decree  be  affirmed,  and  the  appeal  be  dismissed. 

Dlnkin  and  Wardlaw,  CC,  concurred. 

Johnston,  Ch.,  absent  at  the  hearing. 

Decree  modified. 


Spencer,  C.  J.,  in  JACQUES  v.  METHODIST  EPISCOPAL 

CHURCH. 

17  Johns.  (N.  Y.)  548,  578.— 1820. 

The  question  is  whether  Mrs.  Jacques,  with  respect  to  her  estate, 
is  not  to  be  regarded  in  a  court  of  equity  as  a.  feme  sole,  and  may 
not  dispose  of  it  as  she  pleases,  without  regard  to  her  trustee;  there 
being  nothing  in  the  deed  of  settlement  requiring  the  consent  or 
concurrence  of  her  trustee,  nor  any  negation  of  an  unlimited  power 
of  disposition  of  the  estate  by  her. 

I  have  examined  this  case  with  the  unfeigned  respect  which  I 
always  feel  for  the  learned  chancellor,  who  has  denied  the  right  of 
Mrs.  Jacques  to  dispose  of  her  estate,  without  the  consent  or  concur- 
rence of  her  trustee;  and  I  am  compelled  to  dissent  from  his  opinion 
and  conclusions.  From  the  year  1740,  until  1793  (with  the  single 
exception  of  the  opinion  of  Lord  Bathurst  in  Hubne  v.  Tenant, 
which  occurred  in  1778,  and  in  which  case  a  rehearing  was  granted 
by  Lord  Thurlow,  and  the  opinion  reversed),  there  is  an  unbroken 
current  of  decisions,  that  a  feme  covert,  with  respect  to  her  sepa- 
rate estate,  is  to  be  regarded  in  a  court  of  equity  as  a  feme  sole,  and 
may  dispose  of  her  property  without  the  consent  or  concurrence  of 
her  trustee,  unless  she  is  specially  restrained  by  the  instrument 
under  which  she  acquires  her  separate  estate.  There  were  nearly 
twenty  cases  decided  by  Lord  Hardwicke  and  Lord  Thurlow,  con- 
taining the  principle  I  have  stated,  and  which  I  shall  not  weary  the 
patience  of  the  court  by  citing.  The  case  of  Sockett  v.  Wray  (4  Br. 
Ch.  C.  483),  before  Sir  R.  P.  Arden  (Master  of  the  Rolls),  in  1793, 
was  the  first  case  to  break  the  continuity  of  decisions.  This  formed  a 
precedent  for  the  case  of  Hyde  v.  Price  (3  Vesey,  jun.  437),  then 
followed  the  cases  of    Whistler  v.  Netvman  (4  Vesey,  jun.   129),  and 


THE    wife's    separate    ESTATE    IN    EQUITY.  173 

Mores  v.  Huish  (5  Vesey,  jun.  692),  decided  by  Lord  Loughborough. 
In  Whistler  v.  Newman,  Lord  Loughborough  admitted  that  the  cases 
had  gone  the  length,  and  that  he  was  bound  by  them,  that  if  a  mar- 
ried woman  has  separate  property,  she  may  dispose  of  it,  and  the 
trustees  were  bound  to  follow  her  disposition.  \\\  Mores  v.  Huish, 
his  lordship  distinguished  it  from  the  preceding  cases.  These 
cases  are  succeeded  by  many  others,  after  Lord  Eldon  became 
chancellor,  in  which  he  restored  the  law  to  its  first  and  ancient 
principle.  In  the  case  of  Parkesv.  White  (11  Vesey,  jun.  209),  he 
reviewed  all  the  cases,  and  strongly  intimated,  that  the  decision  in 
Whistler  v.  JVewmaji  was  in  opposition  to  all  the  authorities  for  a 
century.  He  laid  down  the  rule  to  be,  that  a  married  woman,  hav- 
ing an  estate  to  her  separate  use,  is  capable  of  disposing  of  it,  pro- 
vided the  transaction  is  free  from  fraud,  and  no  unfair  advantage  is 
taken  of  her. 

The  mistake  into  which  I  think  the  chancellor  has  fallen,  consists 
in  considering  Mrs.  Jacques  restrained  from  disposing  of  her  estate 
in  any  other  way  than  that  mentioned  in  the  deed  of  settlement. 
The  cases,  in  my  apprehension,  are  clearly  opposed  to  this  distinct- 
ion;  and  I  am  entirely  satisfied,  that  the  established  rule  in  equity 
is,  that  when  a  feme  covert,  having  separate  property,  enters  into  an 
agreement,  and  sufficiently  indicates  her  intention  to  affect  by  it  her 
separate  estate,  when  there  is  no  fraud  or  unfair  advantage  taken 
of  her,  the  court  of  equity  will  apply  it  to  the  satisfaction  of  such  an 
engagement.  This  was  the  principle  adopted  by  Lord  Hardwicke, 
in  Grizby  v.  Cox  (i  Vesey,  senr.  517),  and  the  same  doctrine  pre- 
vailed in  Pybus  v.  Smith,  Ellis  v.  Atkinson,  and  in  Newman  v.  Cartony 
(3  Br.  Ch.  C.  340,  346).  In  Pybus  v.  Smith,  Lord  Thurlow  observed, 
if  0.  fetne  covert  sees  what  she  is  about,  the  court  allowed  of  the  alien- 
ation of  her  separate  property.  The  same  principle  was  adopted  in 
Fettiplace  v.  Gorges  (3  Br.  Ch.  C.  8;  i  Vesey,  jun.  46),  and  in  Wag- 
staff  V.  Smith  (9  Vesey,  jun.  520.)  It  seems  to  me  that  the  power 
reserved  to  Mrs.  Jacques,  by  the  deed,  has  been  misconceived;  I 
understand  it,  that  during  her  life,  her  estate  is  to  be  at  her  absolute 
disposal,  with  a  further  power  to  grant  and  devise  it  by  her  last  will 
and  testament;  but  if  the  power  of  disposition  was  specifically 
pointed  out,  it  would  not  preclude  the  adoption  of  any  mode  of  dis- 
position, unless  there  were  negative  words  restraining  the  exercise  of 
the  power,  but  in  the  very  mode  pointed  out. 

Chancellor  Dessaussure,  in  3  Equity  Reports  of  cases  determined 
in  South  Carolina,  p.  427,  has,  with  great  ability,  examined  ail  the 
cases  upon  this  subject,  and  arrived  at  the  conclusion  I  have  formed. 
It  is  t'*ue  that  his  opinion,  and  that  of  Chancellor  Thompson,  who 


174  HUSBAND   AND    WIFE. 

concurred  with  him,  were  overruled  by  the  three  other  chancellors, 
but  it  was  on  the  express  ground  that  tlie  (question  was  res  nova  in 
that  state,  and  that  they  were  not  bound  by  decisions  in  England  in 
consequence  of  colonial  statute  of  1721.  And  those  who  differed 
in  opinion  from  Chancellor  Dessaussure,  admit  that  his  opinion  was 
in  conformity  with  the  English  decisions. 


COONEY  V.  WOODBURN. 

33  Md.  320. — 1870. 

Alvey,  J.  The  question  in  this  case  arises  upon  the  effect  of  a 
clause  in  the  will  of  Patrick  Cooney,  who  died  in  September,  1849. 
The  will  was  made  in  April,  1849. 

The  testator  left  several  children  surviving  him,  and  among  them 
Eleanor  B.,  the  appellant's  intestate,  to  whom  was  bequeathed,  by 
her  father,  certain  leasehold  property  in  the  city  of  Baltimore,  for 
her  sole  and  separate  use  and  benefit,  without  being  subject  to  the 
control  or  disposal,  or  liable  for  the  debts,  of  her  husband,  if  she 
should  thereafter  marry,  and  such  of  the  testator's  property  as 
passed  to  his  daughter  Eleanor  B.,  under  the  residuary  clause  of  the 
will,  was  also  declared  to  be  for  her  sole  and  separate  use  and  bene- 
fit, independent  of  the  control  or  disposal  of  her  husband,  if  she 
should  marry.  At  the  time  of  the  death  of  the  testator,  the  daughter, 
Eleanor  B.,  was  unmarried;  but  she  became  possessed  of  the  prop- 
erty bequeathed  to  her  by  her  father's  will,  and  in  August,  1854, 
was  married  to  Charles  H.  Woodburn,  the  testator  of  the  appellees. 
She  died  intestate,  and  without  issue,  in  1864,  her  husband  surviving 
her.  Her  property  was  all  taken  possession  of  by  the  surviving 
husband,  without  administration;  and  in  August,  1866,  he  died, 
leaving  a  will,  by  which  he  gave  his  property  to  his  mother,  one  of 
the  appellees,  and  David  E.  Woodburn,  his  brother,  became  admin- 
istrator of  his  estate.  In  1867,  George  A.  Cooney,  the  appellant, 
obtained  letters  of  administration  upon  the  estate  of  his  sister, 
Eleanor  B.  Woodburn,  and  in  his  character  of  administrator  claimed 
the  property  that  had  been  bequeathed  to  his  intestate  by  her  father, 
and  which  had  passed  into  the  possession  of  her  surviving  husband  at 
the  time  of  her  death.  The  bill  in  this  case  is  filed  to  enforce  that 
claim.  And  the  single  question  argued  on  this  appeal  is,  whether 
the  personal  property  of  the  wife  limited  to  her  sole  and  separate 
use  by  her  father's  will,  passed,  upon  her  death  intestate  and  without 
issue,  to  her  husband,  in  his  own  right,  or  to  her  administrator? 


THE   wife's   separate   ESTATE   IN   EQUITY.  175 

It  is  contended  on  the  part  of  the  appellant  that,  according  to  the 
intention  of  the  testator,  as  manifested  in  the  terms  of  his  will,  the 
daughter  took  the  estate  bequeathed  to  her  as  fe7ne  sole,  and  that 
she  bore  that  relation  to  it  during  life,  notwithstanding  her  marriage, 
and  that  all  the  marital  rights  of  the  husband  were  excluded,  as  well 
after  the  death  of  the  wife  as  before,  and  that,  consequently,  the 
property  devolved  on  the  appellant  as  administrator  of  the  wife; 
while  on  the  part  of  the  appellees  it  is  contended  that  during  the 
coverture  the  marital  rights  of  the  husband  in  the  property  were 
only  suspended,  and  that  upon  the  death  of  the  wife,  the  separate 
quality  of  the  property  ceased,  and  the  marital  rights  of  the  husband 
attached,  as  if  the  separate  use  had  never  been  declared. 

In  determining  the  question  it  is  important  to  observe  the  terms 
in  which  the  bequests  were  made.  They  gave  the  property  to  the 
legatee,  then  a  single  woman,  for  her  sole  and  separate  use,  without 
being  subject  to  the  control  or  disposition  of  her  future  husband, 
but  without  any  limitation  over  whatever,  or  the  employment  of  any 
terms  to  indicate  how  the  property  was  to  pass  on  the  death  of  the 
daughter;  nor  is  there  any  limitaiton  as  to  the  mode  of  assignment 
or  appointment.  The  legatee  was  clothed,  therefore,  with  general 
power  of  alienation  as  feme  sole,  both  before  and  after  marriage. 
Cooke  y .  Husbands,  11  Md.  492. 

The  separate  estate,  the  mere  creature  of  a  court  of  equity,  is 
allowed  and  maintained  for  the  benefit  and  protection  of  the  wife, 
against  the  improvidence  and  misfortunes  of  the  husband,  and  con- 
sequently it  has  its  existence  and  operation  only  during  the  period 
of  coverture;  and  whilst  the  legatee  in  this  case  remained  discovert 
the  separate  estate  was  dormant  and  without  effect,  though  it  was 
capable  of  arising,  and  did  arise,  upon  the  happening  of  the  mar- 
riage contemplated  by  the  will;  and  upon  the  termination  of  the 
coverture  upon  the  death  of  the  wife,  such  separate  estate  became 
absolutely  void.  Tullett  v.  Armstrong,  i  Beav.,  i;  s.  c,  on  appeal, 
4  Myl.  &  Cr.  397. 

It  was  certainly  competent  to  the  testator  to  have  not  only  ex- 
cluded the  marital  rights  of  the  husband  during  the  coverture,  but, 
by  apt  terms,  to  have  carried  such  exclusion  beyond  that  period, 
and  excluded  them  altogether.  There  is  nothing,  however,  in  the 
terms  of  the  will  to  manifest  clearly  such  intent.  The  husband  is 
the  party  declared  by  law  to  be  entitled  in  the  absence  of  some  clear 
and  positive  limitation  to  exclude  him,  and  if  the  separate  estate 
terminated  with  the  death  of  his  wife,  and  there  be  no  limitation  of 
the  estate  inconsistent  with  the  rights  of  the  husband,  who  other 
chan  the  husband  can  be  entitled?    His  rights  were  simply  suspended, 


176  HUSBAND   AM)    WIFE. 

in  reference  to  this  particular  property,  during  coverture.  It  is  true, 
the  property  could  have  been  disposed  of  by  the  wife  by  virtue 
of  the  existence  of  the  separate  estate,  and  thus  the  husband's  sus- 
pended rights  could  have  been  entirely  defeated;  but  that  not  hav- 
ing been  done,  upon  the  death  of  the  wife,  those  rights  were  revived 
and  became  active. 

It  being  conceded  that  the  husband  would  be  entitled  to  the  prop- 
erty in  question,  if  it  were  not  for  the  effect  attributed  to  the  will  of 
Patrick  Cooney,  it  becomes  purely  a  question  of  construction;  and 
as  there  is  nothing  on  the  face  of  the  will,  apart  from  the  usual 
formula  of  declaring  the  separate  estate  during  coverture,  it  follows 
that  the  husband's  rights,  though  suspended  up  to  the  time  of  the 
death  of  the  wife,  have  not  been  entirely  defeated.  The  will  making 
no  disposition  of  the  property  on  the  death  of  the  wife,  and  providing 
only  for  her  exclusive  dominion  over  it  during  coverture,  "  the  right 
of  the  husband,  as  survivor,  is  a  fixed  and  stable  right,  over  which 
the  court  has  no  control,  and  of  which  he  cannot  be  divested.  The 
settlement  cannot  be  extended,  by  construction,  beyond  the  just  and 
fair  import  of  its  provisions;  and,  clearly,  the  court  cannot  create  a 
settlement  or  disposition  of  property,  in  violation  of  the  Jus  martti 
when  none  has  been  made  by  the  party."  So  declared  Chancellor 
Kent,  in  the  case  of  Stewart  \.  Stewart,  7  Johns.  Ch.  Rep.  229;  and 
the  reasoning  and  principle  of  construction  of  that  case  have  been 
fully  sanctioned  and  approved  of  by  the  courts  of  this  state,  in  Ward 
v.  Thompson,  6  Gill  &  John.  357;  Waters  v.  Tazetvell,  9  Md.  291, 
and  yones  v.  Broivn,  i  Md.  Ch.  Dec.  191;  which  cases  govern  and 
control  this. 

Being  of  opinion  that  the  surviving  husband  was  entitled  to  the 
personal  property  of  his  wife  at  the  time  of  her  death,  we  shall  affirm 
the  decree  appealed  from,  with  costs  to  the  appellees. 

Decree  affirmed. 


JOHNSON  V.  VAIL. 

14  N.  J.  Eq.  423. — 1862. 

The  bill  is  filed  on  behalf  of  a  married  woman,  by  her  husband 
and  next  friend,  for  an  injunction  to  restrain  an  execution  creditor 
of  the  husband  from  selling  and  disposing  of  property  claimed  to  be 
the  separate  estate  of  the  wife. 

The  Chancellor.  *  *  *  i.  It  is  objected  that  the  husband 
is  a  necessary  party  to  the  bill.     The  bill  is  exhibited  and  sworn  to 


THE   wife's   separate   ESTATE   IN    EQUITY.  177 

by  the  husband  as  the  next  friend  of  the  wife;  but  he  is  not  joined 
as  a  party  in  the  bill,  either  as  complainant  or  defendant.  He  can- 
not legally  be  joined  as  complainant,  his  interest,  which  is  claimed 
by  the  defendant,  being  adverse  to  that  of  his  wife.  Persons  having 
adverse  or  conflicting  interests  in  reference  to  the  subject-matter  of 
the  litigation  ought  not  to  join  as  complainants  in  the  suit.  Davies 
V.  Quarterman,  4  Younge  &  Coll.  257;  Grant  v.  Van  Schoonhoven,  7 
Paige,  257;  Alston  v.  yones,  3  Barb.  Ch.  R.  400. 

And  if  the  husband  and  wife  join  in  a  suit  as  plaintiffs,  or  in  an 
answer  as  co-defendants,  it  will  be  considered  as  the  suit  or  the 
defence  of  the  husband  alone;  and  it  will  not  prejudice  a  future 
claim  by  the  wife  in  respect  of  her  separate  interest,  nor  will  the  wife 
be  bound  by  any  of  the  allegations  therein  in  any  future  litigation. 
Pawlet  V.  Delaval,  2  Ves.  sen.  666;  Mole  v.  Smithy  i  Jac.  &  W.  648; 
Hughes  V.  Evans,  i  Sim  &  Stu.  185;  Reeve  v.  Dalley,  2  Ibid,  464; 
Wakew.  Parker,  2  Keen,  73;  England  v.  Doivns,  i  Beavan,  96;  Sigel 
V.  Phelps.  7  Simons,  239;  Oivdenv.  Campbell,  8  Simons,  551;  i  Daniell's 
Ch.  Prac.   142. 

And  in  suit  by  the  wife  for  her  separate  estate,  the  husband  is  a 
necessary  defendant.  S.  A.  afid  Thorby  v.  Yeats,  i  Younge  & 
Coll.  438- 

But  the  practice,  where  the  husband  unites  with  the  wife,  is  not  to 
dismiss  the  bill,  but  to  give  permission  to  the  wife  to  amend  by 
adding  a  next  friend  and  making  the  husband  a  defendant.  Engla?id 
V.  Downs,  I  Beavan,  96;    Wakey.  Parker,  2  Keen,  73. 

Or,  where  no  objection  is  interposed,  to  decree  the  fund  to  be 
paid  to  a  trustee  for  the  use  of  the  wife.  Griffith  v.  Wood,  2  Vesey, 
452;   Simons  v.  Horwood,  i    Keen,  7;   Sigel  v.  Phelps,   7   Simons,  239. 

In  Beifi  and  Wife  v.  Heath,  6  Howard,  228,  it  was  held,  by  the  Su- 
preme Court  of  the  United  States,  that  it  was  no  objection  to  a  bill 
filed  in  relation  to  the  separate  property  of  the  wife,  that  the  hus- 
band is  made  a  party  to  it  with  the  wife.  In  delivering  the  opinion 
of  the  court,  Mr.  Justice  McLean  said:  "  Where  the  wife  complains 
of  the  husband  and  asks  relief  against  him,  she  must  use  the  name  of 
some  other  person  in  prosecuting  the  suit;  but  where  the  acts  of 
the  husband  are  not  complained  of,  he  would  seem  to  be  the  most 
suitable  person  to  unite  with  her  in  the  suit.  This  a  matter  of  prac- 
tice within  the  discretion  of  the  court.  It  is  sanctioned  in  the  sixty- 
third  section  of  Story's  Equity  Pleadings,  and  by  Fonblanque."  In 
some  of  the  earlier  editions  of  Story's  Equity  Pleadings,  the  practice, 
as  stated  by  Mr.  Justice  McLean,  was  certainly  sanctioned  by  the 
language  of  the  section  referred  to.  It  is  stated  to  be  the  ordinary 
practice,  at  least  for  conformity's  sake,  in  suits  by  or  against  the  wife 
[Domestic  Relations — 12. 1 


HUSBAND   AND    WIFE. 


in  regard  to  her  separate  property,  to  join  the  husband  as  a  party 
plaintiff  or  defendant.  But  in  the  more  recent  editions  of  the  treatise 
the  phraseology  of  the  section  is  materially  changed,  with  the  very 
design  of  guarding  against  misapprehension,  and  conforming  it  to 
the  well-settled  rule  of  the  English  courts  of  equity.  The  rule  is 
stated  thus:  "  In  practice,  where  the  suit  is  brought  by  the  wife  for 
her  separate  property,  the  husband  is  sometimes  made  a  co-plaintiff. 
But  this  practice  is  incorrect,  and  in  all  such  cases  she  ought  to  sue 
as  sole  plaintiff  by  her  next  friend,  and  the  husband  should  be  made 
a  party  defendant,  for  he  may  contest  that  it  is  her  separate  prop- 
erty, and  the  claim  may  be  incompatible  with  his  marital  rights." 
Story's  Eq.  PI.  (6th  ed.),  sec.  63. 


* 


'  "  In  general,  therefore,  where  the  suit  relates  to  the  separate  property  of  the 
wife,  it  is  necessary  that  the  bill  should  be  filed  in  her  name,  by  her  next  friend, 
otherwise,  the  defendant  may  demur,  upon  the  ground  that  the  wife  might  at 
any  future  time  institute  a  new  suit  for  the  same  matter,  and  that,  upon  such 
new  suit  being  instituted,  a  decree  in  a  cause  over  which  her  husband  had  the 
exclusive  control  and  authority,  would  not  operate  as  a  valid  bar  against  her 
subsequent  claim.  Where,  however,  the  suit  is  for  a  chose  in  action  of  the  wife, 
not  settled  to  her  separate  use,  the  defendant  cannot  object  to  the  husband's  su- 
ing jointly  with  her  as  co-plaintiff;  nor  will  her  right  to  a  settlement  be  preju- 
diced by  the  fact  of  her  husband  being  so  joined  with  her  in  the  suit. 

Where  the  wife  sues  by  her  next  friend,  the  husband  must  still  be  a  party,  and 
h  is  usual  to  make  him  a  defendant;  but  a  husband  having  no  adverse  interest 
to  his  wife,  may  be  made  a  co-plaintiff. 

As  a  wife  may  sue  her  husband  in  respect  of  her  separate  property,  so  may  a 
husband  in  a  similar  case  sue  his  wife.  Such  suit,  however,  can  only  be  in  re- 
spect to  his  wife's  separate  estate;  for  a  husband  cannot  have  a  discovery  of  his 
own  estate  against  his  wife.  In  those  cases  where  it  is  necessary  that  a  suit  re- 
specting the  property  of  a  married  woman  should  be  instituted  against  her  hus- 
band, or  that  the  husband  should  be  one  of  the  defendants:  as  the  wife,  being 
under  the  disability  of  coverture,  cannot  sue  alone,  and  she  cannot  sue  under 
the  protection  of  her  husband,  she  must  seek  other  protection,  and  the  bill  must 
be  exhibited  in  her  name,  by  her  next  friend,  who  is  named  as  such  in  the  bill, 
as  in  the  case  of  an  infant.  A  bill,  however,  cannot,  as  in  the  case  of  an  infant, 
be  filed  by  a  next  friend  on  behalf  of  a  married  woman,  without  her  consent; 
and  if  a  suit  should  be  so  instituted,  upon  special  motion,  supported  by  her 
affidavit  of  the  matter,  it  will  be  dismissed."  —  Daniell's  Chancery  Practice, 
4th  Am.  Ed.,  vol.  I,  pp.  109-10. 


THE   WIFE'S    STATUTORY    SEPARATE   ESTATE.  179 

The  Wifes  Statutory  Separate  Estate. 
ANKENEY  v.   HANNON. 

147  U.  S.  118. — 1892. 

This  was  a  suit  in  equity  to  charge  the  separate  estate  of  a  mar- 
ried woman  with  the  payment  of  certain  notes  of  which  her  husband 
was  one  of  the  makers,  such  estate  having  been  acquired  subse- 
quently to  their  execution.  It  arose  out  of  the  following  facts:  On 
the  25th  of  March,  1880,  Joseph  E.  Hannon,  Clara  M.  Hannon,  and 
William  H.  Hannon,  executed  their  three  promissory  notes,  aggre- 
gating $14,969.31,  dated  at  Xenia,  Ohio,  and  payable  to  the  order  of 
Joseph  E.  Hannon,  one  of  the  makers.  They  were  subsequently 
transferred  to  the  complainants  before  maturity  for  a  valuable  con- 
sideration. Clara  M.  Hannon  is  the  wife  of  Joseph  E.  Hannon,  and 
at  the  time  the  notes  were  signed  she  possessed  a  small  separate 
estate;  and  in  each  of  the  notes  she  inserted  the  following  provis- 
ions: "  Mrs.  Clara  M.  Hannon  signs  this  note  with  the  intention  of 
charging  her  separate  estate  both  real  and  personal." 

The  case  thus  presented  the  single  question,  whether  the  separate 
estate  of  the  wife,  Mrs.  Clara  M.  Hannon,  acquired  by  her  by  inherit- 
ance from  her  father,  in  1882,  was  chargeable  with  the  payment  of 
the  notes  described,  executed  and  delivered  by  her  and  others  in 
March,   1880. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

At  common  law,  a  married  woman  is  disabled  from  executing  any 
promissory  notes,  either  alone  or  in  conjunction  with  her  husband. 
A  note  or  other  contract  signed  by  both  is  the  obligation  of  the  hus- 
band alone.  And  in  the  absence  of  legislation  a  separate  estate  to  her 
can  only  be  created  by  conveyance,  devise,  or  contract,  and  remedies 
against  such  estate  can  only  be  enforced  in  equity.  At  the  time 
Mrs.  Hannon  signed  the  notes  in  controversy,  married  women  in  Ohio 
were  subject  to  their  common-law  disabilities,  except  with  respect 
to  certain  statutory  contracts,  and  had  power  to  charge  their  separate 
estate  only  in  accordance  with  the  ordinary  rules  of  equity.  Subse- 
quently, in  1884,  the  laws  of  Ohio  were  amended,  authorizing  mar- 
ried women,  during  coverture,  to  contract  in  the  same  extent  and  in 
the  same  manner  as  if  they  were  unmarried.  (Amendatory  sections 
Rev.  Stats.,  3108,  3109,  3110  and  3111.)  And  in  March,  1887,  it  was 
further  provided  that  "  a  husband  or  wife  may  enter  into  any  engage- 
ment or  transaction  with  the  other,  or  with  any  other  person,  which 


l8o  HUSBAND    AND    Willi. 

either  might  if  unmarried;  subject,  in  transactions  oetween  them- 
selves, to  the  general  rules  which  control  the  actions  of  persons 
occupying  confidential  relations  with  each  other."  But  at  the  time 
the  notes  in  question  were  signed  by  Mrs.  Hannon  the  rights  and 
liabilities  of  married  women  in  Ohio,  so  far  as  they  differed  from 
the  doctrine  of  the  common  law,  were  determined  by  the  following 
sections  of  the  Revised  Statutes  which  embodied  the  provisions  of 
the  act  known  as  the  Keys  act,  passed  April,  1861.  These  sections 
are  as  follows: 

"Section  3108.  An  estate  or  interest,  legal  or  equitable,  in  real 
property  belonging  to  a  woman  at  her  marriage,  or  which  may  have 
come  to  her  during  coverture,  by  conveyance,  gift,  devise  or  inherit- 
ance or  by  purchase  with  her  separate  means  or  money,  shall, 
together  with  all  the  rents  and  issues  thereof,  be  and  remain  her 
separate  property,  and  under  her  control;  and  she  may,  in  her  own 
name,  during  coverture,  make  contracts  for  labor  and  materials  for 
improving,  repairing  and  cultivating  the  same,  and  also  lease  the 
same  for  any  period  not  exceeding  three  years.  This  section  shall 
not  affect  the  estate  by  the  curtesy  of  a  husband  in  the  real  property 
of  his  wife  after  her  decease;  but  during  the  life  of  such  wife,  or  any 
heir  of  her  body,  such  estate  shall  not  be  taken  by  any  process  of 
law  for  the  payment  of  his  debts,  or  be  conveyed  or  incumbered  by 
him,  unless  she  joins  therein  with  him  in  the  manner  prescribed  by 
law  in  regard  to  their  own  estate. 

"Section  3109.  The  personal  property,  including  rights  in  action, 
belonging  to  a  woman  at  her  marriage,  or  coming  to  her  during 
coverture,  by  gift,  bequest  or  inheritance,  or  by  purchase  with  her 
separate  money  or  means,  or  due  as  the  wages  of  her  separate  labor, 
or  growing  out  of  any  violation  of  her  personal  rights,  shall,  together 
with  all  income,  increase  and  profit  thereof,  be  and  remain  her 
separate  property  and  under  her  sole  control;  and  shall  not  be  liable 
to  be  taken  by  any  process  of  law  for  the  debts  of  her  husband. 
This  section  shall  not  affect  the  title  of  the  husband  to  personal 
property  reduced  to  his  possession  with  the  express  assent  of  his 
wife;  but  personal  property  shall  not  be  deemed  to  have  been 
reduced  to  possession  by  the  husband  by  his  use,  occupancy,  care  or 
protection  thereof,  but  the  same  shall  remain  her  separate  property, 
unless,  by  the  terms  of  said  assent,  full  authority  is  given  by  the 
wife  to  the  husband  to  sell,  encumber  or  otherwise  dispose  of  the 
same  for  his  own  use  and  benefit. 

"Section  3110.  The  separate  property  of  the  wife  shall  be  liable 
to  be  taken  for  any  judgment  rendered  in  an  action  against  husband 
and  wife  upon  a  cause  existing  against  her  at  their  marriage,  or  for 


THE    wife's    statutory   SEPARATE   ESTATE.  l8r 

a  tort  committed  by  her  during  coverture,  or  upon  a  contract  made 
by  her  concerning  her  separate  property,  as  provided  in  section  3108. 
"  Section  31 11.  A  married  woman,  whose  husband  deserts  her,  or 
from  intemperance  or  other  cause  becomes  incapacitated,  or  neglects 
to  provide  for  his  family,  may,  in  her  own  name,  make  contracts 
for  her  own  labor,  and  the  labor  of  her  minor  children,  and  in  her 
own  name  sue  for  and  collect  her  or  their  own  earnings;  and  she 
may  file  a  petition  against  her  husband,  in  the  Court  of  Common 
Pleas  of  the  county  in  which  she  resides,  alleging  such  desertion, 
incapacity  or  neglect,  and  upon  proof  thereof  the  court  may  enter  a 
judgment  vesting  her  with  the  rights,  privileges  and  liabilities  of  a 
feme  sole,  as  to  acquiring,  possessing  and  disposing  of  property,  real 
and  personal,  making  contracts,  and  being  liable  thereon,  and  suing 
and  being  sued  in  her  own  name;  but  after  such  judgment  the  hus- 
band shall  not  be  liable  upon  any  contracts  so  made  by  her  in  her 
own  name,  or  for  any  tort  thereafter  committed  by  her." 

Sections  4996  and  5319  should  also  be  quoted,  as  they  are  supposed 
by  the  appellants  to  have  some  bearing  upon  the  questions  pre- 
sented. 

Section  4996  is  as  follows: 

"A  married  woman  cannot  prosecute  or  defend  by  her  next  friend, 
but  her  husband  must  be  joined  with  her,  unless  the  action  con- 
cerns her  separate  property,  is  upon  her  written  obligation,  con- 
cerns business  in  which  she  is  a  partner,  is  brought  to  set  aside  a 
deed  or  will,  or  to  collect  a  legacy,  or  is  between  her  and  her  hus- 
band." 

Section  5319  is  as  follows: 

"When  a  married  woman  sues  or  is  sued  alone,  like  proceedings 
shall  be  had,  and  judgment  may  be  rendered  and  enforced  as  if  she 
were  unmarried,  and  her  separate  property  and  estate  shall  be  liable 
for  the  judgment  against  her,  but  she  shall  be  entitled  to  the  benefit 
of  all  exemptions  to  heads  of  families." 

These  last  two  sections  originally  were  parts  of  an  act  passed  in 
1874.  It  has  been  held  by  the  Supreme  Court  of  Ohio  that  the  legis- 
lation contained  in  these  provisions,  considered  either  by  itself  or  in 
connection  with  the  act  of  March  30,  1874,  the  provisions  of  which 
are  embraced  in  sections  4996  and  5319  of  the  Revised  Statutes 
does  not  enlarge  the  capacity  of  married  women  to  make  contracts 
except  in  the  instances  specifically  mentioned.  The  case  of  Lej'i  v 
Earl,  30  Ohio  St.  147,  maintains  this  position,  after  an  elaborate 
analysis  and  consideration  of  the  legislation  on  the  powers  and 
disabilities  of  married  women  in  the  state.  That  case  was  decided, 
it  is  true,  by  the  Supreme  Court  Commission   of  Ohio  and   not  by 


i82  HUSBAND   AND    WIFE. 

the  Supreme  Court  of  the  state,  but  that  commission  was  ap- 
pointed by  the  governor  of  the  state,  under  an  amendment  of  the 
Constitution  adopted  to  dispose  of  such  part  of  the  l)usiness  on  the 
docket  of  the  Supreme  Court  as  should,  by  arrangement  between 
the  commission  and  the  court,  be  transferred  to  the  commission. 
The  amendment  declares  that  the  commission  shall  have  like  juris- 
diction and  power  in  respect  to  such  business  as  may  be  vested  in  the 
court.  A  decision  of  the  commission  upon  a  question  properly  pre- 
sented to  it  in  a  judicial  proceeding  is,  therefore,  entitled  to  the  like 
consideration  and  weight  as  a  decision  upon  the  same  question  by 
the  court  itself,  and  is  equally  authoritative. 

The  case  cited,  among  other  things,  adjudges  and  declares  (i)  that 
by  the  provisions  of  law  quoted  the  wife  is  authorized  to  make  con- 
tracts in  her  own  name  for  labor  and  materials  for  improving,  repair- 
ing and  cultivating  her  separate  estate  as  defined  by  them,  and  for 
leasing  the  same  for  a  term  not  exceeding  three  years,  and  that 
upon  such  contracts  the  wife  is  liable  to  an  action  at  law  and  to  a 
judgment  and  execution  as  2.  fe^ne  sole^  but  that  all  her  other  engage- 
ments, debts  or  obligations  are  void  at  common  law,  the  same  as 
before  the  adoption  of  the  provisions  mentioned;  (2)  that  by  those 
provisions  the  marital  rights  of  the  husband  were  divested  as  to  the 
wife's  general  estate,  and  the  wife  was  invested  with  the  control  of 
the  same,  and  could  bind  it  not  only  by  the  contracts  which  she  was 
authorized  to  make  in  her  own  name,  but  to  the  same  extent  as  she 
could  charge  her  separate  estate  in  ecjuity  before  the  provisions 
were  adopted;  (3)  that  the  power  of  a  court  of  equity  to  charge  the 
separate  estate  of  a  married  woman  as  existing  and  exercised  before 
those  provisions  were  adopted  still  existed  not  only  as  to  such  sepa- 
rate property,  but  also  as  to  her  separate  property  as  defined  by  those 
provisions,  except  as  to  such  contracts  as  she  was  authorized  to 
make  in  her  own  name,  upon  which  a  remedy  at  law  was  given  by 
the  statute. 

It  has  always  been  held  by  the  Supreme  Court  of  Ohio  that  sec- 
tions 4996  and  5319  of  the  Revised  Statutes,  which  embody  the  pro- 
visions of  the  act  of  March  30,  1874,  were  intended  simply  as  an 
amendment  to  the  Code  of  Civil  Procedure,  and  did  not  affect  or 
enlarge  the  rights  or  liabilities  of  married  women,  but  related  merely 
to  the  remedy,  yenz  v.  Gugel,  26  Ohio  St.  527;  Allison  v.  Porter, 
29  Ohio  St.  136;  Avery  v.  Vansickle,  35  Ohio  St.  270. 

The  powers  and  liabilities  of  married  women  not  being  affected  in 
any  particulars  except  those  mentioned,  by  the  legislation  of  Ohio 
previous  to  the  execution  of  the  notes  in  controversy,  the  defendant, 
Mrs.  Hannon,  did  not  charge  her  subsequently  acquired   estate  at 


THE   wife's   statutory    SEPARATE   ESTATE.  1 83 

law  for  their  payment,  when  she  signed  them  in  connection  with  her 
husband.  Even  if  under  the  legislation  in  question  she  would,  by  the 
decision  in  Williams  v.  Urtnston,  35  Ohio  St.  296,  which  is  said  to 
qualify,  in  some  respects,  the- decision  in  Levi  v.  Earl,  have  charged 
at  law  her  separate  estate  existing  at  the  time  of  the  execution  of 
the  notes  in  the  absence  of  the  express  statement  in  them  that  she 
intended  thus  to  charge  it,  there  is  nothing  in  the  legislative  pro- 
visions adopted  which  enlarges  her  power  at  law  to  charge  any  future 
acquired  estate.  The  question  then  remains  to  be  considered 
whether  her  after  acquired  estate  is  chargeable  in  equity.  That  is 
to  be  determined  by  the  ordinary  rules  of  equity,  and  we  think  it  is 
clear  that  the  contracts  of  married  women  are  not  chargeable  in 
equity  upon  their  subsequently  acquired  estates. 

The  separate  estate  of  a  married  woman,  as  we  have  stated,  is,  in 
the  absence  of  legislation  on  the  subject,  created  by  conveyance, 
devise  or  contract.  Its  creation  gives  to  her  the  beneficial  use  of 
the  property  which  otherwise  would  not  be  brought  under  her  con- 
trol. As  to  such  property  she  is  regarded  in  equity  as  a  feme  sole, 
and  it  was,  therefore,  formerly  held  that  her  general  engagements, 
though  not  personally  binding  upon  her,  could  be  enforced  against 
the  property.  This  doctrine,  however,  has  been  modified  in  modern 
times.  It  is  now  held  that  to  charge  her  separate  estate  with  her 
engagement,  it  must  have  been  made  with  an  intention  on  her  part 
to  create  a  charge  upon  such  estate;  that  is,  with  reference  to  the 
property,  either  for  its  improvement  or  for  her  benefit  upon  its 
credit.  There  has  been  much  divergency  of  opinion  and  some  con- 
flict both  in  the  courts  of  England  and  of  this  country  as  to  what  is  nec- 
essary to  establish  such  intention  on  the  part  of  the  wife  to  charge  her 
separate  estate  for  her  contract.  It  is  conceded  that  there  must 
have  been  an  intention  on  her  part  to  affect  such  a  charge,  other- 
wise her  engagement  will  not  have  that  effect. 

The  numerous  decisions  in  the  High  Court  of  Chancery  of  Eng- 
land have  shown  this  divergency  and  conflict  in  a  marked  degree. 
Lord  Thurlow  placed  the  right  of  the  wife  to  charge  the  property 
upon  her  right  as  owner  to  dispose  of  it  without  other  authority. 
Hulme  V.  Tenant,  i  Bro.  C.  C.  16;  Fettiplace  v.  Gorges,  3  Bro.  C.  C.  8. 
But  this  theory  was  afterwards  rejected  by  Lord  Loughborough, 
who  denied  the  liability  of  a  married  woman's  separate  estate  for 
her  general  parol  engagements,  and  explained  the  previous  cases 
upon  the  ground  that  the  securities  which  the  wife  had  executed 
operated  as  appointments  of  her  separate  property.  Bolton  v.  Wil- 
liams, 2  Ves.  jun.  138. 

This  doctrine   proceeded   upon   the    assumption    that  the   wife's 


l84  HUSBAND   AND    WIFE. 

separate  estate  was  not  liable  for  her  general  engagements,  but  only 
for  such  as  were  specifically  charged  in  writing  upon  it.  This  theory 
Lord  Brougham  rejected,  holding  that  there  was  no  valid  distinction 
between  a  written  security,  which  the  married  woman  was  incapable 
of  executing,  and  a  promise  by  parol,  and  that  mere  parol  engage- 
ment of  the  wife  was  equally  effective  to  create  a  charge  as  her  bond 
or  note.     Murray  v.  Barlee,  3  Myln  &  K.  209. 

The  reasoning  of  Lord  Brougham  to  establish  his  views  was  after- 
wards met  and  rejected  by  Lord  Cottenham.  Owens  v.  Dickenson,  i 
Craig  &  Ph.  48. 

The  Court  of  Appeals  of  New  York,  in  the  case  of  Yale  v.  Dederer^ 
22  N.  Y.  450,  considered  very  fully  the  evidence  which  would  be 
required  to  charge  the  separate  estate  of  the  wife  upon  her  contract, 
and  in  its  examination  reviewed  the  various  decisions  of  the  English 
Court  of  Chancery,  pointing  out  their  many  differences  and  con- 
flicts, and  placed  its  decision  upon  this  ground,  that  such  estate 
could  not  be  charged  by  contract  unless  the  intention  to  charge  it 
was  stated  in  the  contract  itself  or  the  consideration  was  one  going 
to  the  direct  benefit  of  the  estate.  In  that  case  a  married  woman 
signed  a  promissory  note  as  a  surety  for  her  husband,  and  it  was  held, 
though  it  was  her  intention  to  charge  such  estate,  that  such  inten- 
tion did  not  take  effect,  as  it  was  not  expressed  in  the  contract  itself. 

In  the  case  of  Willard  v.  East/mm,  15  Gray,  328,  335,  the  same 
question  was  elaborately  considered  by  the  Supreme  Judicial  Court 
of  Massachusetts.  In  that  case  a  debt  was  contracted  by  a  married 
woman  for  the  accommodation  of  another  person  without  considera- 
tion received  by  her,  and  it  was  held  that  the  contract  could  not  be 
enforced  in  equity  against  her  separate  estate,  unless  made  a  charge 
upon  it  by  an  express  instrument.  And  the  court  concludes,  after  a 
full  consideration  of  the  subject,  by  observing  that  the  whole  doc- 
trine of  the  liability  of  a  married  woman's  separate  estate  to  dis- 
charge her  general  engagements  rests  upon  grounds  which  are  arti- 
ficial and  which  depend  upon  implications  too  subtle  and  refined; 
and  that  "  the  true  limitations  upon  the  authority  of  a  court  of  equity 
in  relation  to  the  subject  are  stated  in  great  clearness  and  precision 
in  the  elaborate  and  well  reasoned  opinions  of  the  Court  of  Appeals 
of  New  York  in  the  case  of  Yale  v.  Dederer,"  which  we  have  cited, 
and  says:  "Our  conclusion  is  that  when  by  the  contract  the  debt  is 
made  expressly  a  charge  upon  the  separate  estate,  or  is  expressly 
contracted  upon  its  credit,  or  when  the  consideration  goes  to  the 
benefit  of  such  estate  or  to  enhance  its  value,  then  equity  will  decree 
that  it  shall  be  paid  from  such  estate  or  its  income,  to  the  extent  to 
which  the  power  of  disposal*  by  the  married   woman  may  go.      But 


THE    wife's   statutory    SEPARATE    ESTATE.  1 85 

where  she  is  a  mere  surety  or  makes  the  contracts  for  the  accom- 
modation of  another,  without  consideration  received  by  her,  the 
contract  being  void  at  law,  equity  will  not  enforce  it  against  her 
estate,  unless  an  express  instrument  makes  the  debt  a  charge 
upon  it." 

We  concur  in  these  views  as  to  the  limitation  on  the  authority  of 
a  court  of  equity  in  relation  to  the  subject.  In  this  case  the  amended 
bill  avers  that  the  defendant,  Mrs.  Hannon,  executed  the  notes  in 
question  with  the  intention  of  charging  her  after-acquired  property; 
but  inasmuch  as  her  contract  is  in  writing,  the  averment  can  be 
regarded  only  as  the  pleader's  conclusion,  which  must  be  determined 
by  the  application  of  the  law  to  the  undertaking  itself.  There  is 
nothing  in  the  written  agreement  which  makes  any  reference  to  an 
after-acquired  estate. 

In  Pike  v.  Fitzgibbon,  17  Ch.  D.  454,  460,  the  question  as  to  the 
power  of  a  married  woman  to  bind  her  subsequently  acquired  estate 
was  considered.  In  that  case  Lord  Justice  James  said:  "  Another 
point  also  has  been  raised,  of  which  we  must  dispose,  and  which  has 
arisen,  as  it  seems  to  me,  from  a  misapprehension  of  some  of  the 
cases.  It  is  said  that  a  married  woman  having  separate  estate  has 
not  merely  a  power  of  contracting  a  debt  to  be  paid  out  of  that 
separate  estate,  but,  having  a  separate  estate,  has  acquired  a  sort  of 
equitable  status  of  capacity  to  contract  debts,  not  in  respect  only 
of  that  separate  estate,  but  in  respect  of  any  separate  estate  which 
she  may  thereafter  in  any  way  acquire.  It  is  contended  that  because 
equity  enables  her,  having  estate  settled  to  her  separate  use,  to 
charge  that  estate  and  to  contract  debts  payable  out  of  it,  therefore 
she  is  released  altogether  in  the  contemplation  of  equity  from  the 
disability  of  coverture,  and  is  enabled  in  a  court  of  equity  to  contract 
debts  to  be  paid  and  satisfied  out  of  any  estate  settled  to  her  separate 
use  which  she  may  afterwards  acquire,  or,  to  carry  the  argument  to 
its  logical  consequences,  out  of  any  property  which  may  afterwards 
come  to  her.  In  my  opinion  there  is  no  authority  for  that  conten- 
tion, which  appears  to  rise  entirely  from  a  misapprehension  of  the 
case  of  Pickard  v.  Hiiu\  L.  R.  5  Ch.  274,  and  one  or  two  other 
cases  which  follow  it,  in  which  this  point  was  never  suggested. 
*  *  *  I  desire  to  have  it  distinctly  understood  as  my  opinion 
and  the  opinion  of  my  colleagues,  and,  therefore,  as  the  decision  of 
this  court,  that  in  any  future  case  the  proper  inquiry  to  be  inserted 
is  what  was  the  separate  estate  which  the  married  woman  at  the  ' 
time  of  contracting  the  debt  or  engagement,  and  whether  that  sepa- 
rate estate  or  any  part  of  it  still  remains  capable  of  being  reached 
by  the  judgment  and  execution   of  the   court.     That  is  all  that  the 


1 86  HUSBAND    AM)    Wlii:. 

court  can  apply  in  payment  of  the  debt."  Lord  Justice  Brett,  ia 
his  concurring  opinion,  said:  "The  decisions  appear  to  me  to 
come  to  this,  that  certain  promises  (I  use  the  word  '  promises  '  in 
order  to  show  that  in  my  opinion  they  are  not  contracts)  made  by 
married  women,  and  acted  upon  by  the  persons  to  whom  they  are 
made,  on  the  faith  of  the  fact  known  to  them  of  her  being  possessed 
at  the  time  of  a  separate  estate,  will  be  enforced  against  such  sepa- 
rate estate  as  she  was  possessed  of  at  that  time,  or  so  much  of  it  as 
remained  at  the  time  of  judgment  recovered,  whether  such  judgment 
be  recovered  during  or  after  the  cessation  of  the  coverture.  That 
proposition  so  stated  does  not  apply  to  separate  estate  coming  into 
existence  after  the  promise  which  it  is  sought  to  enforce."     p.   462. 

It  is  true  that  in  that  case  {^Pike  v.  Fitzgibbon),  as  stated  by  Lord 
Justice  James,  it  did  not  appear  that  the  appellant  had,  since  the 
date  of  her  engagement,  acquired  any  property  settled  to  her  sepa- 
rate use,  and  had  not  asked  by  the  appeal  to  vary  the  judgment  as 
regards  subsequently  acquired  property.  "It  is  therefore  suffi- 
cient," said  the  lord  justice,  "  to  state,  as  a  warning  in  any  future 
case,  that  the  only  separate  property  which  can  be  reached  is  the 
separate  property  or  the  residue  of  the  separate  property,  that  a 
married  woman  had  at  the  time  of  contracting  the  engagements 
which  it  is  sought  to  enforce."  But  in  King  v.  Lucas,  23  Ch.  D.  7i2> 
724,  in  the  Court  of  Appeal,  the  question  whether  the  engagements 
of  a  married  woman  could  be  charged  upon  her  subsequently  acquired 
estate,  was  actually  involved,  and  the  decision  in  Pike  v.  Fitzgibbon 
was  held  conclusive.  Said  Cotton,  L.  J. :  "  With  respect  to  her  sepa- 
rate estate  she  is  treated  as  a  feme  sole,  but  it  has  been  decided  that 
it  must  be  separate  estate  which  belonged  to  her  at  the  time  of 
the  making  of  the  contract,  and  is  still  remaining  at  the  time  when 
the  contract  is  enforced  and  judgment  obtained.  In  Pike  v.  Fitz- 
gibbon it  was  held  by  a  learned  judge  that  all  separate  property  could 
be  charged  which  belonged  to  the  married  woman  at  the  time  when 
the  contract  was  enforced,  but  that  was  held  to  be  erroneous  by  the 
Court  of  Appeal,  and  the  rule  was  laid  down  that  the  contract  could 
be  enforced  only  against  the  separate  estate  existing  at  the  time  of 
the  contract.  In  the  present  case,  therefore,  there  is  no  question 
as  to  any  principle;  the  only  question  is  whether  certain  property 
was  the  separate  property  of  the  lady  when  she  made  the  contract." 

In  view  of  the  considerations  stated  and  the  decisions  mentioned, 
and  numerous  others  which  might  be  cited,  we  are  of  opinion 
that  in  Ohio  the  separate  property  of  a  married  woman  could  not  be 
charged  in  equity  by  contracts  executed  previous  to  its  existence, 
for   the   obvious  reason   that  in  reference  to  such  property  the  con- 


THE    WIFE'S    EQUITY    TO   A   SETTLEMENT.  187 

tracts  could  not  be  made.  The  after-acquired  estate  was  not  at  tne 
time  available  in  a  court  of  equity  to  meet  the  contracts,  for  at  tnat 
date  it  had  no  existence.  The  English  Married  Woman's  Property 
act  of  1882  provided  that  "  every  contract  entered  into  by  a  marriea 
woman  shall  be  deemed  to  be  a  contract  entered  into  by  her  with 
respect  to  and  to  bind  her  separate  property,  unless  the  contrary  be 
shown."  And  in  section  i  (sub.  sec.  4),  it  was  declared  that  "  every 
contract  entered  into  by  a  married  woman  with  respect  to  and  to 
bind  her  separate  property,  shall  bind  not  only  the  separate  property 
which  she  is  possessed  of  or  entitled  to  at  the  date  of  contract,  but 
also  all  separate  property  which  she  may  thereafter  acquire."  And 
yet  in  Deakin  v.  Lakin,  30  Ch.  D.  169,  171,  it  was  held  that  this  act 
did  not  enable  a  married  woman,  who  had  no  existing  separate  prop- 
erty, to  bind  by  a  contract  separate  property  afterwards  acquired, 
and  Pearson,  J.,  said:  "  In  my  opinion,  according  to  the  true  con- 
struction of  the  act,  the  contract  which  is  to  bind  separate  property 
must  be  entered  into  at  a  time  when  the  married  woman  has  existing 
separate  property.  If  she  has  such  property  her  contract  will  bind 
it.  If  she  afterwards  commits  a  breach  of  the  contract,  and  pro- 
ceedings are  taken  against  her  for  the  breach  of  contract,  any  sepa- 
rate property  which  she  has  acquired  since  the  date  of  the  contract  and 
which  she  has  at  the  time  when  judgment  is  recovered  against  her,, 
will  be  liable  for  the  breach  of  the  contract.  But  the  act  does  not 
enable  her,  by  means  of  a  contract  entered  into  at  a  time  when  she 
has  no  existing  separate  property,  to  bind  any  possible  contingent 
separate  property." 

It  follows  that  the  decree  must  be  affirmed,  and  it  is  so  ordered. 


The  Wifes  Equity  to  a  Settlement. 
POINDEXTER  v.  JEFFRIES. 

15  Gratt.  (Va.)  363.— 1859. 

In  185 1,  John  Bowyer  died  intestate  leaving  real  and  personal 
estate.  One  of  his  children  was  Frances,  the  wife  of  G.  B.  Poin- 
dexter.  In  December,  185 1,  G.  B.  Poindexter  conveyed  his  interest 
in  his  wife's  undivided  portion  of  her  father's  real  estate  to  F.  B. 
Lewis.  In  September,  1852,  in  a  suit  brought  by  the  administrator 
for  partition  of  the  real  and  personal  estate,  a  decree  for  partitioa 
was  made.  Before  this  decree  was  executed,  to  wit,  on  October,  20, 
1852,  Poindexter  conveyed  his  interest  in  his  wife's  portion  of  the 
personal  estate  to  W.  B.  Poindexter  and  F.  B.  Lewis  for  the  sole  use 


l88  HUSBAND   AND    WIFE. 

of  herself  and  children.  Shortly  afterwards,  the  estate  was  par- 
titioned and  the  portion  assigned  to  G.  B.  Poindexter  and  wife  was 
145^  acres  of  land  and  two  slaves.  April  16,  1853,  Mrs.  Poindexter 
filed  a  petition  asking  that  the  personal  property  apportioned  to  her 
be  assigned  to  W.  B.  Poindexter  and  F.  B.  Lewis,  trustees  in  the 
deed  of  October  20,  1852,  in  trust  for  the  purposes  expressed  therein; 
and  that  such  additional  provision  might  be  made  for  her  out  of 
the  life  estate  of  her  husband  in  the  real  estate  descended  to  her 
from  her  father,  as  the  court  might  deem  adequate.  On  the  same 
day  the  report  of  the  partition  was  confirmed,  but  subject  to  her 
rights  to  such  future  decree  as  the  court  might  make  upon  her 
petition. 

On  June  21,  1851,  F.  B.  Lewis  had  obtained  a  decree  against  G. 
B.  Poindexter  and  his  sureties,  Jeffries  and  Pollard,  for  $2,975.16; 
and  the  sureties,  having  satisfied  the  decree,  had  it  registered  for 
their  benefit  March  30,  1852,  and  levied  upon  one  of  the  slaves  which 
had  been  allotted  to  Poindexter  and  wife.  The  sale  was  suspended 
by  injunction  issued  November  11,  1853,  upon  the  petition  of  Poin- 
dexter and  wife. 

In  this  state  of  things  the  bill  in  this  case  was  filed  in  January, 
1854,  by  Jeffries  and  Pollard  against  F.  B.  Lewis,  in  his  own  right, 
F.  B.  Lewis  and  W.  B.  Poindexter,  as  trustees  in  the  deed  of  October 
20,  1852,  and  G.  B.  Poindexter  and  wife,  stating  the  facts  and  pray- 
ing that  the  said  deed  might  be  vacated;  the  injunction  dissolved; 
the  two  slaves  subjected  to  the  execution  of  the  plaintiffs;  and  the 
life  interest  of  G.  B.  Poindexter  in  the  land  assigned  to  his  wife,  and 
his  interest  in  the  dower  slaves,  subjected  to  the  claim  of  the  plain- 
tiffs. After  trial  of  this  cause,  a  decree  was  obtained,  from  which 
Poindexter  and  wife  applied  for,  and  obtained,  an  appeal. 

MoxcuRE,  J.  This  case  involves  the  doctrine  of  what  is  familiarly 
called  "  the  wife's  equity;  "  the  origin  and  foundation  of  which  are 
involved  in  much  doubt,  but  which  has  been  long  and  firmly  estab- 
lished in  England;  2  Story's  Eq.  sees.  1402,  1407,  etc.;  and  though 
but  recently  recognized  in  this  state,  is  now  well  established  here 
also.  Gregory's  Adm' r  v.  Mark's  Admr^  i  Rand.  355;  Gallcgo  v. 
Gallego's  Ex' or,  2  Brock.  R.  285;  Bro^uning  v.  Headley,  2  Rob.  R.  340; 
DohV  s  Trustees.  Geiger  s  Adinr,  2  Gratt.  98;  yames,  etc.  v.  Gibbs,  i 
Pat.  &  Heath,  277.  I  will  not  attempt  to  investigate  it  fully,  but 
will  state  only  so  much  of  it  as  seems  to  be  pertinent  to  the  present 
case.  The  authorities  on  the  subject  are  collected  and  commented 
on  in  I  Lead.  Gas.  in  Eq.,  Am.  ed.,  1859,  top  paging,  453-501. 

The  doctrine  may  be  briefly  stated  thus:  That  a  wife  is  entitled  to 


THE   wife's   equity   TO    A   SETTLEMENT.  189 

an  equitable  settlement  out  of  her  property,  not  only  against  her 
husband,  but  against  all  creditors  of,  and  purchasers  from  him, 
whenever  it  is  recoverable  only  in  a  court  of  equity,  or  the  aid  of 
that  court  is  actually  invoked  for  its  recovery;  unless  the  husband 
has  become  a  purchaser  of  the  property  by  an  ante-nuptial  contract 
with  the  wife.  If  it  be  recoverable  at  law,  and  the  aid  of  a  court  of 
equity  be  not  actually  invoked  to  recover  it,  her  equity  does  not 
exist.  And  it  ceases  to  exist,  though  the  property  be  recoverable 
in  equity,  whenever  it  has  been  actually  recovered  or  received  with- 
out any  claim  by  her  to  a  settlement.  Whenever  the  husband,  in 
right  of  his  wife,  has  obtained  possession  of,  and  title  to  her  prop- 
erty, his  own  title,  jure  man'fi,  becomes  complete;  and  the  property, 
to  the  extent  of  his  title,  is  subject  to  his  right  of  disposition,  and 
to  the  claims  of  creditors  and  purchasers,  like  any  other  property 
of  his  any  otherwise  acquired.  2  Story's  Eq.  sec.  1403.  If  he  or 
they  have  occasion  to  go  into  a  court  of  equity  for  its  assistance  in 
regard  to  property  to  which  his  title  has  thus  become  complete,  that 
court,  cannot,  as  the  price  of  its  assistance,  impose  upon  him  or 
them  the  terms  of  a  settlement  out  of  it  on  the  wife.  The  relief 
sought  in  such  a  case,  being  due  ex  debito  justitia,  must  be  decreed 
unconditionally.  It  may  be  laid  down  as  a  universal  rule,  that  when 
property,  by  being  reduced  into  the  husband's  possession,  has  once 
been  released  from  the  wife's  equity,  it  can  never  again  be  subjected 
to  it.  I  mean,  of  course,  the  wife's  equity,  technically  so  called; 
which  overrides  the  claims  of  the  husband  and  all  persons  claiming 
under  or  against  him.  i  Lead.  Cas.  in  Eq.  468,  498.  Property 
acquired  by  the  husband  jure  tnariti,  like  any  other  property  of  his, 
may  become  liable  to  the  equitable  claims  of  the  wife  in  a  suit  for  a 
divorce  a  viensa  et  thoro,  and  perhaps  in  a  suit  for  alimony.  Id, 
496-7.  But  such  liability  is  subordinate  to  prior  liens  acquired 
under  or  against  the  husband. 

It  seems  to  have  been  at  one  time  considered  that  real  estate  was 
not  subject  to  the  wife's  equity;  and,  at  all  events,  that  it  was  not 
so  subject  if  it  were  not  a  trust  estate,  but  one  in  its  nature  legal, 
which  becomes  from  collateral  circumstances  the  subject  of  a  suit 
in  equity;  as  where  the  legal  estate  happens  to  be  outstanding  in  a 
mortgagee.  But  both  of  these  points  were  decided  affirmatively  in 
the  case  of  Sturgis  v.  Chauipueys,  5  Milne  &  Cr.  97;  reported  also  in 
9  Law  J.  N.  S.  p.  100.  In  that  case  the  wife  of  an  insolvent  was 
entitled  for  her  life  to  real  estate  which  had  been  devised  to  her 
without  the  intervention  of  trustees;  but  the  legal  title  was  out- 
standing in  certain  mortgagees,  and  the  assignee  of  the  insolvent  was 
obliged  to  file  a  bill  to  make  his  title  (subject  to  the  incumbrances) 


190  HUSBAND    AM)    Will:. 

effectual.  It  was  held  bv  Lord  Chancellor  Cottenham  (reversing 
the  decision  of  the  vice-chancellor),  that  the  wife  was  entitled  to 
a  settlement  out  of  the  rents  and  profits  of  the  estate  during  the 
coverture.  In  Hanson  v  Keating,  4  Hare,  i,  30  Eng.  Ch.  R.  i,  Vice- 
Chancellor  Wigram,  who  had  been  counsel  for  the  assignee  of  the 
husband  in  Stiirgis  v.  Chainpneys,  remarked,  that  prior  to  that  case 
the  opinion  of  the  profession  had,  he  believed,  become  settled,  that 
estates  in  land  were  not  subject  to  the  same  equity,  upon  the  broad 
and  important  principle  of  preserving  a  strict  analogy  between  legal 
and  equitable  estates  in  land.  But,  in  deference  to  that  judgment, 
he  followed  it,  "although  (he  further  remarked)  if  that  case  were 
out  of  the  way,  I  should  probably  have  decided  otherwise.  There 
would  be  no  difficulty  (he  said),  in  distinguishing  the  facts  of  this 
case  from  those  in  Sturgis  v.  Champneys ;  but  the  reasoning  in  that 
case  would  remain,  and  I  cannot  disregard  it."  That  case  has  also 
been  followed  by  other  cases,  and  its  authority  seems  to  be  now  fully 
established  in  England.  Freeman  \.  Fairlie,  11  Jur.  447;  Newenham 
V.  Petfiberton,  17  Law  J.  Equity  N.  S.  P.  99;  s.  c,  i  D.  G.  &  Sm. 
644.  I  have  seen  no  American  case  in  conflict  with  it.  In  Dold's 
Trustee  v.  Geiger  s  Adm'r,  2  Gratt.  98,  no  question  was  raised  as  to  the 
liability  of  real  estate  to  the  wife's  equity;  but  it  was  held  not  to  be 
liable  in  that  case,  because  the  husband  had  the  legal  title  and  pos- 
session. See,  also.  Van  Duzer  \.  Van  Diizer,  6  Paige's  R.  366;  and 
Wickes  v.  Clarke,  8  Id.  161.  In  y antes,  etc.  v.  Gibbs,  etc.,  i  Pat.  & 
Heath,  277,  the  Special  Court  of  Appeals  referred  to  and  recognized 
the  case  of  Sturgis  v.  Champneys,  and  decreed  a  settlement  on  the  wife 
out  of  her  real  estate.  It  is  unnecessary,  however,  in  my  view  of 
this  case,  to  decide  the  question,  and  I  therefore  express  no  opinion 
upon  it,  but  will  assume,  for  the  purposes  of  the  case,  that  the 
doctrine  is  alike  applicable  to  real  and  personal  estate. 

As  to  the  amount  of  the  wife's  property  to  be  settled;  the  general 
rule  at  one  time  was  to  settle  upon  her  one-half  of  the  subject,  i 
Roper  on  Husband  and  Wife,  260;  i  Leading  Cas.  in  Eq.,  edition  of 
1859,  p.  483.  But  this  is  a  matter  in  the  discretion  of  the  court,  which 
will  take  into  consideration  the  amount  of  the  wife's  fortune  already 
received  by  the  husband,  or  any  previous  settlement  which  may  have 
been  made.  Id.  Accordingly,  in  Coster  v.  Coster,  9  Sim.  R.  597, 
three-fourths  of  the  fund  was  settled  on  the  wife  by  Sir  L.  Shadwell, 
V.  C. ;  and  in  Napier  v.  Napier,  i  Drew.  &  Walk.  407,  six  hundred 
pounds  out  of  a  fund  amounting  to  one  thousand  pounds,  were  set- 
tled on  her  by  Ld.  Ch.  Sugden.  It  has  been  said  that  the  court 
will  not,  except  perhaps  under  very  peculiar  circumstances,  settle 
the  whole  of  the  property  on  the  wife.     And  in  Beresfordv .  Hobson, 


THE    WIFE'S    EQUITY    TO   A   SETTLEMENT.  I9I 

I  Madd.  R.  362,  in  which  the  master,  upon  a  reference,  had  approved 
of  the  settlement  of  the  whole,  Sir  Thomas  Plumer,  V.  C,  sustained 
the  exception  taken  to  the  report;  observing,  after  an  elaborate 
review  of  the  authorities,  that  the  question  in  most  cases  had  been, 
how  much  the  wife  should  have;  and  in  determining  that,  the  court 
had  exercised  a  discretion,  and  had  not  tied  itself  down  to  any  pre- 
cise rule,  but  had  never  given  the  whole.  But  the  whole  has  been 
given  in  many  subsequent  English  cases,  which  are  cited  in  i  Lead. 
Cas.  in  Eq.  485.  The  American  cases  seem  to  be  to  the  same  effect, 
many  of  which  are  cited  in  the  notes  of  Hare  &  Wallace  to  that 
valuable  work,  p.  499.  This  court,  in  Browtiing  v.  Hcadley,  2  Rob. 
R.  340,  gave  the  whole  to  the  wife.  The  true  rule  on  the  subject 
seems,  therefore,  to  be,  that  the  settlement  should  be  reasonable  and 
adequate,  and  may  be  of  part  or  the  whole  of  the  property,  according 
to  the  sound  discretion  of  the  court  upon  all  the  circumstances  of 
the  case.  The  usual  practice  is  to  refer  it  to  a  commissioner  to 
inquire  and  report  what  would  be  a  reasonable  and  adequate  settle- 
ment. But  the  court  may  decide  this  question  for  itself,  if  there 
be  sufficient  material  in  the  record  for  the  purpose:  and  if  it  plainly 
appear  that  the  whole  property  subject  to  the  settlement  is  not 
more  than  adequate,  a  reference  is,  of  course,  unnecessary. 

As  to  when  the  provision  for  the  wife  should  take  effect,  this, 
also,  is  a  matter  of  discretion  with  the  court  upon  all  the  circum- 
stances. If  her  husband  lives  with  and  supports  her,  it  may  be 
made  to  take  effect  when  he  ceases  to  do  so,  or  at  his  death.  But 
if  he  has  deserted  or  ill-treated  her,  or  is  insolvent,  or  is  unable  or 
fails  to  support  her,  it  will  be  directed  to  commence  immediately. 
I  Lead.  Cas.  in  Eq.  499. 

The  wife's  equity  is  so  substantial  an  interest  that  it  will  consti- 
tute a  valuable  consideration  for  a  post-nuptial  settlement  by  the 
husband  upon  her  (made  while  the  equity  exists),  which  will  be  sus- 
tained against  his  creditors,  to  the  extent  of  the  equity,  by  a  court 
of  chancery.  Id.  500.  "The  same  circumstances  which  would 
induce  the  court  (said  the  V.  C.  in  IVickes  v.  Clarke,  8  Paige's  R. 
166)  to  compel  a  settlement  by  the  husband,  or  those  claiming 
under  him  or  in  his  right,  will  operate  to  uphold  a  deed  of  settle- 
ment already  made,  to  the  same  extent  that  would  be  required  if 
one  should  be  directed  to  be  made  under  the  view  of  the  court." 

The  equity  of  the  wife  will  be  administered  to  her,  not  only  in  a 
suit  in  which  the  husband  or  his  assignee  is  plaintiff,  seeking  the  aid 
of  a  court  of  equity  to  recover  her  property;  but  generally,  also, 
in  a  suit  brought  by  her  or  her  trustee  for  the  purpose  of  asserting 
it.      This  was  at  one  time  doubted,  it  being  supposed  that  the  juris- 


192  HUSBAND    AND    WIFE. 

diction  rested  solely  on  the  ground  that  he  who  asks  equity  should 
do  equity;  but  it  has  long  since  been  firmly  established.  2  Story's 
Eq.  sec.  1414;  1  Roper  on  Husb.  and  Wife,  260;  Elibank  v.  Moniolieu, 
5  Ves.  R.  737;  Nnvenham  v.  Pemberton,  17  Law  J.  Equity  N.  S.  99; 
I  Lead.  Cas.  in  Eq.  468. 

There  seems  to  be  one  exception  to  this  general  rule,  and  that  is, 
where  the  property  is  in  its  nature  legal,  buc  the  aid  of  a  court  of 
equity  is  invoked  for  its  recovery  on  some  collateral  ground  of  juris- 
diction; as  in  the  case  of  a  mortgage  debt  recovered  in  a  foreclosure 
suit.  There,  the  wife's  equity  attaches  solely  on  the  ground  that  he 
who  asks  equity  must  do  equity,  and  therefore  cannot  be  asserted  in 
a  suit  brought  by  her.      i  Roper  on  Husb.  and  Wife,  258,  260. 

The  argument  of  the  counsel  for  the  appellees,  that  the  doctrine 
of  the  wife's  equity,  recognized  and  acted  on  by  this  court,  is  that 
which  had  been  settled  in  England  at  the  time  of  the  establishment 
of  our  chancery  court,  and  that  we  must  therefore  look  only  to  the 
English  decisions  prior  to  that  time  to  ascertain  the  law  upon  the 
subject,  is,  I  think  untenable.  The  subsequent  English  decisions 
are,  of  course,  not  binding  upon  us;  but  they  are  entitled  to  great 
respect,  and  at  least  as  much  on  this  question  as  on  any  other. 

Having  stated  so  much  of  the  doctrine  as  seems  to  be  pertinent,  I 
will  now  endeavor  to  apply  the  law  to  the  facts  of  this  case. 

There  can  be  no  question  but  that  the  doctrine  applies  to  Mrs.  Poin- 
dexter's  portion  of  her  father's  personal  estate.  That  estate  at  his 
death  devolved  on  his  personal  representative.  His  distributees  at 
law,  of  whom  she  was  one,  could  recover  it  only  in  equity.  She 
asserted  her  claim  to  an  equitable  settlement  out  of  her  distributive 
portion  before  it  was  received  or  recovered  by  her  husband,  and 
before  the  report  of  partition  of  the  estate  was  confirmed  by  the  court. 
And  though  the  report  was  confirmed  and  her  portion  received 
before  the  decree  sustaining  the  settlement  which  had  been  made 
upon  her  by  her  husband,  yet  the  confirmation  was  expressly  subject 
to  the  future  order  or  decree  of  the  court  upon  her  petition  for  a 
settlement  which  she  had  previously  filed.  The  deed  of  settlement 
of  the  20th  of  October,  1852,  was  certainly  executed  before  her 
husband  received  possession  of  her  portion  or  any  part  of  it;  and 
that  settlement,  having  afterwards  been  sustained  by  the  decree  of 
the  court,  is  valid  (if  properly  sustained),  notwithstanding  posses- 
sion of  the  property  was  received  between  the  dates  of  the  deed  and 
of  the  decree.  The  argument  of  the  appellee's  counsel,  that  the 
administrator  of  Bowyer,  being  also  one  of  his  distributees,  by  bring- 
ing the  suit  for  partition,  elected  henceforward  to  hold  the  subject 
as  distributee,  and  not  as  administrator;  that  the  possession  of  one 


THE   WIFE'S    EQUITY   TO   A   SETTLEMENT.  I93 

parcener  is  the  possession  of  all;  and  that  therefore  Poindexter  was 
in  possession  of  his  wife's  portion  of  the  personal  estate  before  she 
claimed  her  equity,  cannot  be  sustained.  The  administrator  did  not 
cease,  as  such,  to  hold  the  personal  estate  of  his  intestate,  so  far  as  the 
record  shows,  until  it  was  actually  distributed;  until  which  time  it  was 
assets  in  his  hands,  and  he  was  not  bound  to  distribute  it  without 
refunding  bonds. 

Nor  can  there  be  any  doubt  as  to  the  propriety  of  the  decree 
approving  and  confirming  the  said  deed.  The  settlement  thereby 
made  was  certainly  not  excessive,  in  view  of  all  the  circumstances  of 
the  case.  And  the  husband  being  insolvent  and  unable  to  support 
his  family,  it  was  properly  provided  in  the  deed  that  the  property 
should  immediately  enure  to  the  benefit  and  maintenance  of  the 
wife  and  children.  The  deed  may  not  be  in  such  form  as  the  court 
would  have  prescribed;  but  the  wife  being  satisfied  with  it,  and 
having  petitioned  for  its  confirmation,  the  court  properly  confirmed 
it.  as  it  did  not  prejudice  the  rights  of  the  husband's  creditors. 

Then  as  to  the  real  estate:  Was  the  wife  entitled  to- an  equitable 
settlement  out  of  her  husband's  interest  in  that  estate  (assuming  the 
doctrine  to  be  applicable  to  real  estate)?  She  derived  it  by  descent 
from  her  father,  who  at  the  time  of  his  death  was  possessed  thereof 
and  had  a  legal  title  thereto.  Her  husband  had  no  occasion  to  go 
into  equity  to  obtain  possession  or  complete  his  title.  If  any  remedy 
had  been  necessary  by  reason  of  the  act  of  a  wrong-doer  in  taking 
or  withholding  possession,  it  would  have  been  a  legal  remedy.  But 
none  was  necessary.  There  was  no  interruption,  either  of  the  title 
or  possession,  both  of  which  devolved  at  once  upon  the  heirs-at-lavv 
of  her  father  as  coparceners.  The  possession  of  one  was  the  pos- 
session of  all  the  coparceners.  i  Lom.  Dig.  489,  marg.  And  the 
seizin  of  one  was  sufficient  to  entitle  the  husband  of  another  to  be 
tenant  by  the  curtesy.  Id.  69,  marg.  sec.  14;  i  Bright  on  Husb. 
and  Wife,  p.  117,  ch.  10,  sec.  i,  Nos.  6  and  7.  But  here  all  were 
actually  seized,  so  far  as  the  record  shows.  Momentary  seizin  is 
sufficient  to  complete  the  husband's  title.  Id.  No.  9.  But  in  this 
case  there  has  been  no  interruption  of  his  seizen.  A  husband  by 
becoming  possessed  of  his  wife's  freehold  estate  of  inheritance  dur- 
ing the  coverture,  acquires  a  freehold  interest  during  their  joint 
lives,  if  there  be  no  issue  of  the  marriage,  and  during  his  own  life, 
if  there  be  such  issue.  In  the  former  case,  he  and  his  wife  are  seized 
in  her  right,  and  in  the  latter  he  is  seized  in  his  own  right  as  tenant 
by  the  curtesy  initiate,  and  may  maintain  an  action  in  respect  to  his 
freehold  interest  in  his  own  name  only.  Id.  p.  112,  ch.  9,  Nos.  i,  6, 
8  and  9.  In  both  cases  his  interest  is  unconditional  and  unencum- 
[DoMESTic  Relations —  13.] 


194  HUSBAND    AM)    WIFE. 

bered,  and  is  subject  to  his  right  of  disposition  and  liable  to  his 
debts.  In  this  case,  there  being  issue  of  the  marriage,  the  husband 
became  tenant  by  the  curtesy  initiate  of  his  wife's  interest  in  her 
father's  real  estate,  and  his  freehold  estate  thus  acquired  is  not 
liable  to  his  wife's  ecjuity.  That  such  an  estate  is  not  so  liable 
necessarily  results  from  principles  before  stated,  and  has  been 
expressly  decided,  not  only  in  New  York;  J'an  Duzer  v.  Van  Duzer, 
6  Paige's  R.  366;  Wickcs  v.  Clarke,  8  Id.  161 ;  but  also  by  this  court; 
Dold's  Trustee  v.  Geiger  s  Adm'r,  2  Gratt.  98.  In  the  last-mentioned 
case-  Dold  and  wife  brought  a  suit  to  recover  her  share  of  her 
father's  real  and  personal  estate  on  the  ground  that  he  had  died 
intestate.  After  a  protracted  litigation  the  intestacy  was  estab- 
lished and  the  plaintiffs  succeeded.  Pending  the  litigation  the  wife, 
by  her  next  friend,  filed  a  petition,  praying  that  her  share  of  the 
estate  might  be  settled  on  her;  and  the  husband  by  his  answer 
assented.  The  Circuit  Court  decreed  accordingly;  but  with  a  pro- 
viso that  the  rights  of  the  husband's  creditors  which  may  have 
attached  upon  the  property  before  the  execution  of  the  settlement, 
should  not  be  affected.  The  decree  further  confirmed  a  division  of 
the  real  estate  that  had  been  previously  made,  and  directed  the  wife's 
share  to  be  delivered  to  the  trustee,  to  be  held  for  her  separate  use. 
The  suit  for  the  account  and  the  distribution  of  the  personal  and 
profits  of  the  real  estate,  thereafter  proceeded.  The  result  of  the 
suit  showed  that  the  share  of  the  wife,  exclusive  of  her  share  of  the 
slaves,  amounted  to  about  $4,500,  much  the  larger  part  of  which 
arose  from  the  rents  and  profits  of  the  real  estate,  hire  of  negroes 
and  interest  on  personalty  accruing  during  the  pendency  of  the  suit; 
and  that  her  share  of  the  slaves  was  in  value  about  $2,700.  This 
subject  was  by  the  decree  of  the  Circuit  Court  charged  with  a  debt 
of  the  husband  due  by  judgment,  amounting  in  the  aggregate,  at 
the  date  of  the  decree,  to  about  $1,500.  The  trustee  of  the  wife 
appealed  from  the  decree,  which  was  affirmed  by  this  court.  Judge 
Stanard  thus  concluded  his  able  opinion  in  the  case,  in  which  the 
other  judges  concurred:  "In  respect  to  the  rents  and  profits  of 
the  real  estate,  he  (the  husband)  was  at  law  and  in  equity  absolutely 
entitled  to  them.  Of  that  real  estate  there  had  been  actual  possession, 
by  virtue  of  such  actual  possession  by  one  or  more  coparceners, 
and  they  were  accountable  at  law  to  the  husband  for  the  rents  and 
profits,  and  he  might  sue  therefor  without  joining  his  wife.  This 
subject  ought  to  have  been  charged,  though  the  principle  of  the  dis- 
tributable share  of  the  personal  estate  should  be  protected  in  the 
hands  of  the  wife  and  her  trustee  by  the  relinquishment  of  the 
husband.     To  the  tenancy  by  the  curtesy  of  the  husband  in  the  real 


THE   wife's    equity    TO   A   SETTLEMENT.  I95 

estate  he  had  legal  title ;    and  that  was  clearly  chargeable  with  his 
debts,  irrespective  of  his  voluntary  surrender  thereof  to  the  wife." 

The  husband's  title  as  tenant  by  the  curtesy  having  thus  become 
complete,  and  not  being  liable  to  the  wife's  equity  while  the  estate 
was  held  in  coparcenary,  no  state  of  things  which  could  afterwards 
arise  could  subject  his  interest  to  that  equity.  It  then  stood  upon 
the  same  footing  with  his  other  property,  and  became  alike  subject  to 
his  right  of  disposition  and  the  claims  of  his  creditors.  Therefore, 
he  or  his  assigns  or  judgment-creditors  had  a  right  to  go  into  equity 
to  have  a  partition  of  the  real  estate,  and  an  allotment  of  his  wife's 
portion  thereof;  and  his  judgment-creditors  had  a  right  to  the  aid 
of  that  court  in  enforcing  the  lien  of  their  judgments  by  a  sale  of 
his  interest,  without  being  subjected  to  the  condition  of  a  settlement 
on  his  wife  or  any  other  condition  whatever.  A  parcener  acquires 
no  new  right,  nor  is  his  old  right  enlarged  by  a  partition.  He  is 
entitled  to  a  partition  as  a  legal  incident  to  his  estate  in  coparce- 
nary; and  it  is  merely  a  different  mode  of  enjoying  the  estate,  to 
which  he  may  resort  at  his  election.  While  the  estate  is  held  in 
coparcenary,  his  seizin  is  of  an  undivided  interest,  and  pervades  the 
whole  estate.  After  the  division  and  allotment,  his  seizin  is  con- 
fined to  his  several  share,  but  as  to  that  is  exclusive.  And  so  too  a 
judgment-creditor  of  the  husband  coming  into  equity  to  enforce  the 
lien  of  his  judgment  by  a  sale  of  an  interest  acquired  by  the  husband 
in  the  wife's  real  estate,  is  seeking  no  new  right  nor  to  enlarge  an 
old  one,  but  is  merely  pursuing  a  remedy  expressly  given  him  by  law 
to  effectuate  a  legal  lien  upon  his  debtor's  property.  The  wife  hav- 
ing no  inherent  equity  in  such  a  case,  can  acquire  none  from  the  fact 
that  she  is  a  defendant  to  the  suit.  The  maxim  that  he  who  asks 
equity  must  do  equity  does  not  apply  to  the  case.  Hanson  v.  Keat- 
ing, 30  Eng.  Ch.  R.  I. 

The  wife's  equity  attaches,  as  we  have  seen,  only  when  resort 
must  be,  or  is  actually,  had  to  a  court  of  equity  to  reduce  her  prop- 
erty into  her  husband's  possession,  or  complete  his  title  thereto, 
and  not  when  resort  may  be  had  to  that  court  for  any  purpose  after 
such  possession  has  been  obtained  and  title  completed.  The  Special 
Court  of  Appeals  decided  otherwise  in  J^a/nes,  etc.  v.  Gibbs,  etc.,  i  Pat. 
&  Heath,  277;  but,  with  the  highest  respect  for  the  opinions  of  that 
court,  I  must  say  that  I  think  the  decision  contrary  to  settled  princi- 
ples of  law,  if  not  to  the  decision  of  this  court  in  Dold' s  Trustee  v. 
Geiger  s  Adni  r,  supra.  And  I  am  confirmed  in  this  view  by  the  fact 
that  one  of  the  learned  judges  who  concurred  in  the  decision  of  the 
Special  Court,  afterwards  decided  this  case  otherwise  in  the  court 
below,  and  must  therefore  have  changed  his  opinion. 


196  HUSBAND    AM)    WIFE. 

But  it  is  argued  by  the  counsel  for  the  appellants,  that  as  advance- 
ments had  been  made  by  the  intestate  to  his  children  in  his  lifetime, 
a  resort  to  a  court  of  equity  was  indispensable  to  settle  an  account 
of  the  advancements,  and  ascertain  the  share  to  which  each  of  the 
children  was  entitled  in  the  partition  of  the  estate;  and  that  there- 
fore the  wife's  equity  attached  to  Mrs.  Poindexter's  share  as  well 
of  the  real  as  of  the  personal  estate.  I  do  not  think  this  conclusion 
correct.  Notwithstanding  the  fact  that  advancements  happened 
to  have  been  made  to  the  children,  the  heirs  had  a  legal  title  to, 
and  were  in  possession  of  the  inheritance  to  the  extent  of  their 
respective  interests,  from  the  death  of  the  ancestor.  The  title  and 
possession  of  each  parcener  as  to  his  undivided  share  was  then  com- 
plete. The  occasion  which  afterwards  arose  to  go  into  a  court  of 
equity  for  a  partition  of  the  estate  and  an  allotment  of  the  several 
portions,  cannot  affect  or  impair  the  right  of  any  person  concerned. 
The  account  of  advancements  is  a  mere  incident  of  the  partition, 
affecting,  of  course,  the  extent  and  amount  of  the  several  portions, 
but  not  the  title  of  the  parceners.  The  distinction  is  between  going 
into  equity  to  complete  the  husband's  title,  and  going  there  for 
some  purpose  in  regard  to  the  property  after  the  title  is  completed. 
In  the  former  case,  the  wife's  equity  attaches;  in  the  latter,  it  does 
not.  Going  into  a  court  of  equity  for  an  account  of  advancements 
and  partition  of  real  estate  descended  and  in  possession  of  the  heirs, 
is  a  case  of  the  former  kind.  And  so  is  going  there  to  enforce  a 
judgment  lien  upon  a  husband's  interest  in  his  wife's  portion  of  the 
estate. 

It  is  further  ^irgued,  that  it  does  not  appear  of  what  the  advance- 
ments consisted,  whether  of  real  or  personal  estate;  and  that  Poin- 
dexter  and  wife  may  have  been  entitled  to  more  personal,  and  less 
real  estate  than  they  received  in  the  division.  See  Code,  p.  525, 
ch.  123,  sec.  15.  The  answer  to  this  argument  is,  that  the  partition 
was  fairly  made,  was  not  excepted  to,  and  has  been  confirmed  by 
the  court.  It  must  therefore  now  be  considered  that  they  received 
their  due  and  relative  portion  of  the  real  and  personal  estate. 

I  think  there  is  no  error  in  the  decree  of  the  Circuit  Court,  and 
am  for  affirming  it. 

The  other  judges  concurred  in  the  opinion  of  Moncure,  J. 

Decree  affirmed. 


THE   WIFE   AS   TRUSTEE.  IQ/ 

The   Wife  as   Trustee. 

STILL  ET  ux.  V.  RUBY,  et  al. 

35  Pa.  St.  373.  —  i860. 

This  was  a  scire  facias  by  Mary  Ruby  and  John  Ruckstool  and 
Eliza  A.  Ruckstool,  which  Mary  Ruby  and  Eliza  A.  Ruckstool  were 
trustees  of  The  Heart  and  Hand  Female  Beneficial  Society  of  Phila- 
delphia, against  Charles  Still  and  Sarah  K.  his  wife,  on  a  mortgage 
given  by  the  defendants  to  the  female  plaintiffs,  as  trustees,  on  the 
19th  day  of  February,  1856,  to  secure  the  payment  of  $500  and 
interest  in  one  year  from  the  date  thereof. 

The  following  affidavit  of  defense  was  filed  by  Charles  Still,  one 
of  the  defendants: 

"Charles  Still,  one  of  the  above  named  defendants,  and  on  behalf 
of  his  co-defendant,  being  duly  sworn,  etc.,  saith:  That  they  have  a 
just  and  legal  defence  to  the  whole  of  plaintiffs'  claim  in  the  above 
case,  the  nature  and  character  of  which  is  as  follows:  That  the  said 
Eliza  A.  Ruckstool,  one  of  the  above  named  plaintiffs,  before  and  at 
the  time  of  the  commencement  of  this  suit,  and  at  the  time  of  the 
execution  of  the  mortgage  on  which  said  suit  is  brought,  was  and 
still  is  married  to  one  John  Ruckstool,  then  and  yet  her  husband,, 
who  is  still  living,  to-wit,  at  Philadelphia  aforesaid,  in  the  county^ 
aforesaid;  and  this  deponent  for  himself  and  his  co-defendant  fur- 
ther says,  that  they  have  not,  nor  has  either  of  them  any  knowledge 
of  John  Ruckstool  joined  as  a  party  plaintiff  in  this  suit,  except  as 
the  reputed  husband  of  the  said  Eliza  A.  Ruckstool  —  his  name  does 
not  appear  in  the  mortgage  on  which  this  suit  is  brought  —  nor  have 
this  deponent  and  his  co-defendant,  nor  has  either  of  them  at  any 
time  had  any  transactions  of  business  or  otherwise  with  him.  All  of 
which  the  deponent  expects  to  be  able  to  prove  on  the  trial  of  the 
case." 

The  court  below,  on  motion  of  the  plaintiffs'  counsel,  gave  judg- 
ment for  want  of  a  sufficient  affidavit  of  defence,  which  was  here 
assigned  for  error. 

Woodward,  J.  The  affidavit  disclosed  no  defence  whatever. 
Mrs.  Ruckstool,  as  appeared  on  the  face  of  the  mortgage,  was  only 
trustee  for  The  Heart  and  Hand  Female  Beneficial  Society,  in  whom 
the  beneficial  interest  of  the  mortgage  was  vested.  .  Femes  cox'ert^ 
like  infants,  lunatics,  and  others  non  sui Juris,  may  be  trustees,  sub- 
ject, of  course,  to  their  legal  incapacity  to  deal  with  the  estate  vested 


198  HUSBAND    AND    WIFE. 

in  them:    Hill  on  Trustees,  49.     The  incapacity  of  Mrs.  Ruckstool 
to  sue  in  her  own  name   was  obviated  by  her  husband  joining  with 
her.     The  mortgagors  must  pay  the  money  as  they  agreed  to  do. 
The  judgment  is  affirmed.' 

'  Dower  in  trust  property  does  not  exist  independent  of  statute.  In  most  jur- 
isdictions the  statute  is  now  broad  enough  to  create  a  dower  interest  in  an 
equitable  estate.  1  Ames'  Cases  on  Trusts  (2d  Ed.),  p.  375.  See  Jn  the  Matter 
of  the  Estate  of  Henry  P.  Pulling,  97  Mich.  375;  reported  herein,  supra.  Yet  a 
husband  has  an  estate  by  the  curtesy  in  his  wife's  equitable  property.  Ames 
Cases  on  Trusts  (2d  Ed.),  pp.  379-38O; 


THE   WIFE'S   DOMICILE.  IQQ 

The  Wifes  Domicile. 

SUTER  V.  SUTER. 
72  Miss.  345.— 1894. 

Woods,  J.  This  is  an  appeal  from  a  decree  of  the  court  below 
allowing  alimony  and  counsel  fees  pendente  lite,  in  proceedings  insti- 
tuted by  a  wife  for  divorce  from  her  husband  for  desertion. 

From  the  bill  filed  by  the  wife,  and  from  her  evidence  offered  in 
support  of  her  application  for  alimony  and  counsel  fees,  it  is  per- 
fectly certain  that  the  home  of  the  husband  is  in  New  Orleans,  La. ; 
and  the  domicile  of  the  husband  is  that  of  the  wife.  From  the  same 
sources  of  information,  it  is  clear  that,  shortly  after  the  return  of  the 
husband  from  Biloxi  to  his  business  and  home  in  New  Orleans,  he 
invited  the  wife  to  join  him  in  their  home  in  that  city;  that  she  was 
>M"ged  by  Mr.  Clarke  to  return  to  her  husband  and  home,  and 
declined  to  do  so  except  upon  condition  of  her  husband's  placing  the 
title  to  the  home  in  their  joint  names,  in  order  to  prevent  any  sale 
of  the  same  by  the  husband  without  her  consent;  and  that,  in  Sep- 
tember, 1890,  the  husband  wrote  the  wife,  stating  his  inability  to 
bear  the  double  expense  of  their  living  separate,  and  calling  her 
attention  to  her  former  refusal  to  go  to  New  Orleans,  where  he  was 
compelled  to  remain  to  make  a  living,  and  urging  the  wife  to  come 
to  him  with  their  children. 

In  his  sworn  answer,  the  husband  states  his  efforts  to  have  the 
wife  return  to  him  and  his  home,  and  avers  his  willingness  to  receive 
her  now. 

It  is  a  mistake  on  the  part  of  the  wife  when  she  declares  that  her 
homestead  is  in  Biloxi.  Her  domicile  is  that  of  her  husband,  and 
his  is  in  New  Orleans,  and  she  cannot,  to  suit  her  convenience  or 
pleasure,  create  a  home  distinct  from  her  husband's  by  refusing  to 
reside  in  the  domicile  of  his  choice. 

There  is  nothing  in  the  case,  as  made  by  the  wife,  which  consti- 
tutes this  an  exception  in  the  general  rule  just  announced.  We  have 
been  unable  to  see  any  reasonable  ground,  suggested  even  by  the 
wife's  own  showing,  why  she  should  not  return  to  her  husband's 
home  and  hers. 

That  the  husband  has  sold  the  residence  property  in  New  Orleans 
since  her  refusal  to  return  to  New  Orleans  is  of  no  concern  what- 


200  HUSBAND   AND    WIFE. 

ever.     The  ownership  of  a  residence  property  is  not  a  prerequisite 
to  the  selection  of  a  domicile  and  the  establishment  of  a  home. 

On  the  wife's  showing,  her  bill  and  her  application  for  alimony 
and  counsel  fees  are  a  fraud  upon  the  jurisdiction  of  the  court.' 


Redfield,  Ch.  J.,  IN  POWELL  v.  POWELL. 
29  Vt.   148,  150. — 1856. 

Now,  while  we  recognize  fully  the  right  of  the  husband  to  direct 
the  affairs  of  his  own  house,  and  to  determine  the  place  of  the  abode 
of  the  family,  and  that  it  is  in  general  the  duty  of  the  wife  to  submit 
to  such  determinations,  it  is  still  not  an  arbitrary  power  which  the 
husband  exercises  in  these  matters.  He  must  exercise  reason  and 
discretion  in  regard  to  them.  If  there  is  any  ground  to  conjecture 
that  the  husband  requires  the  wife  to  reside  where  her  health  or  her 
comfort  will  be  jeoparded,  or  even  where  she  seriously  believes  such 
results  will  follow  which  will  almost  of  necessity  produce  the  effect, 
and  it  is  only  upon  that  ground  that  she  separates  from  him,  the 
court  cannot  regard  her  desertion  as  continued  from  mere  wil- 
fulness. 

Any  man  who  has  proper  tenderness  and  affection  for  his  wife 
would  certainly  not  require  her  to  reside  near  his  relatives  if  her 
peace  of  mind  were  thereby  seriously  disturbed.  This  would  be  very 
far  from  compliance  with  the  Scriptural  exposition  of  the  duty  of 
husbands:  "For  this  cause  shall  a  man  leave  father  and  mother 
and  cleave  to  his  wife,  and  they  twain  shall  be  one  flesh." 

And  in  the  present  case,  as  the  wife  alleges  the  vicinity  of  the 
husband's  relatives  as  a  reason  why  she  cannot  consent  to  come  to 
Milton  to  live  with  him,  and  as  every  one  at  all  experienced  in  such 
matters  knows  that  it  is  not  uncommon  for  the  female  relatives  of 
the    husband    to    create,   either    intentionally  or  accidentally,    dis- 


1  "  The  theory  of  the  law,  that  husband  and  wife  are  one  person,  and,  wherever 
the  wife  may  be  actually,  she  is  constructively  with  her  husband,  is  not  appli- 
cable to  a  wife  who  remains  in  a  place  where  she  and  her  husband  last  lived  to- 
gether, after  he  is  gone,  and  brings  a  suit  against  him  for  a  divorce  founded  on 
his  misconduct  while  they  were  together.  She  may  retain  her  old  domicile,  ac- 
quired when  she  and  her  husband  were  actually  abiding  in  the  same  place,  and 
is  not  compelled  to  follow  him  to  a  place  where  she  never  lived,  merely  because 
before  she  discovered  his  offence  she  intended  to  go  there  with  him;  but  this  ex- 
ception to  the  general  law  of  domicile  has  no  application  in  suits  brought  by  the 
husband  against  the  wife  for  her  misconduct." —  Syllabus  in  Burtis  v.  Burtis, 
\(n  Mass.  508. 


CHASTISEMENT   OP.   RESTRAINT   OF   THE   WIFE.  20t 

quietude  in  the  mind  of  the  wife,  and  thereby  to  destroy  her  comfort 
and  health  often,  and  as  there  is  no  attempt  here  to  show  that  this 
is  a  simulated  excuse,  we  must  treat  it  as  made  in  good  faith,  and 
if  so,  we  are  not  prepared  to  say  that  she  is  liable  to  be  divorced 
for  acting  upon  it. 


Chastisement  or  Restraint  of  the  Wife. 
THE  PEOPLE  V.  WILLIAM  WINTERS. 

2  Park.  Cr.  Rep.  (N.  Y.)  io. — 1823. 

The  prisoner  was  indicted  for  assault  and  battery  on  his  wife.  It 
ajjpeared  on  the  trial  that  the  prisoner  attempted  to  correct  one  of 
his  children,  and  that  his  wife  interfered  and  made  such  a  noise  as  to 
alarm  the  neighborhood.  She  testified  that  he  struck  her  on  the 
head  with  his  hand,  and  bruised  her  severely. 

Walworth,  Circuit  Judge,  said  a  husband  has  no  right  to  beat 
his  wife  or  to  inflict  punishment  upon  her.  But  he  may  defend  himself 
against  her,  and  may  restrain  her  from  acts  of  violence  towards 
himself  and  others,  for  he  is  accountable  for  her  acts  which  injure 
others. 

The  jury  being  satisfied  by  other  testimony  that  the  prisoner  had 
done  nothing  more  than  was  necessary  to  defend  himself,  in  this 
case,  rendered  a  verdict  of  not  guilty. 


THE  QUEEN  v.  JACKSON. 

L.  R.  (1891),  I  Q.  B.  671. 

Argument  on  the  return  to  a  writ  of  habeas  corpus^  commanding 
Edmund  Haughton  Jackson  to  bring  up  the  body  of  Emily  Emma 
Maude  Jackson,  his  wife,  taken  and  detained  in  his  custody. 

Lord  Esher,  M.  R.'  In  this  case  it  is  really  admitted  that  this 
lady  is  confined  by  the  husband  physically  so  as  to  take  away  her 
liberty.  The  only  question  for  us  to  determine  is  whether  in  this 
case  we  can  allow  that  to  continue.  The  husband  declares  his  inten- 
tion to  continue  it.  He  justifies  such  intention;  and  the  proposition 
laid  down  on  his  behalf  is  that  a  husband  has  a  right  to  take  the 
person  of  his  wife  by  force  and  keep  her  in  confinement,  in  order  to 
prevent  her  from  absenting  herself  from  him  so  as  to  deprive  him  of 

'  Opinions  were  also  given  by  Lord  Halsbury,  L.  C,  and  Fry,  L.  J. 


202  IIUSHANI)    AM)    WIFE. 

her  society.     A  series  of   propositions   have   been  quoted   which,  ff 
true,  make  an  English  wife  the  slave,  the  abject  slave,  of  her  hus- 
band.    One  proposition  that  has  been  referred  to  is  that  a  husband 
has  a  right  to  beat  his  wife.     I  do  not  believe  this  ever  was  the  law. 
Then   it   was   said   that,  if   the   wife  was   extravagant,  the  husband 
might  confine  her,  though  he  could   not  imprison   her.      The  con- 
finement there  spoken  of  was  clearly  the  deprivation  of  her  liberty 
to  go  where  she  pleases.     The  counsel  for  the  husband  was  obliged 
to  admit  that,  if  she  was  kept  to  one  room,  that  would  be  imprison- 
ment; but  he  argued   that,  if  she  was  only  kept  in  the  house,  that 
was  confinement  only.     That  is  a  refinement  too  great  for  my  intel- 
lect.    I  should  say  that  confining  a  person  to  one  house  was  imprison- 
ment, just  as  much  as  confining  such  person  to  one  room.      I  do  not 
believe  that  this  contention  is  the  law  or  ever  was.     It  was  said  that  by 
the  law  of  England  the  husband  has  the  custody  of  his  wife.      What 
must  be  meant  by  "custody"  in  that  proposition  so  used  to  us? 
It  must  mean  the  same  sort  of  custody  as  a  gaoler  has  of  a  prisoner. 
I  protest  that  there  is   no  such  law  in  England.      Cochrane' s  Case, 
8  Dowl.  630,  was  cited  as  deciding  that  the  husband  has  a  right  to 
the  custody,  such  custody,  of  his  wife.     I  have  read  it  carefully,  and 
I  think  that  it  does  so  decide.     The  judgment,  if  I  may  respectfully 
say  so,  is  not  very  exactly  worded,  and  uses  different  expressions  in 
many  places  where  it  means  the  same  thing;  but  that  seems  to  me 
to  be  the  result  of  it.     It  appears  to  me,  if  I  am  right  in  attributing 
to  it  the  meaning  I  have  mentioned,  that  the  decision  in  that  case 
was  wrong  as  to  the  law  enunciated  in  it,  and  that  it  ought  to  be 
overruled.     Sitting  here,  in  the  Court  of  Appeal,  we  are  entitled  to 
overrule  it.     I  do  not  believe  that  an  English  husband  has  by  law 
any  such  rights  over  his  wife's  person  as  have  been  suggested.     I  do 
not  say  that  there  may  not  be  occasions  on  which  he  would  have  a 
right  of  restraint,  though  not  of  imprisonment.      For  instance,  if  a 
wife  were  about  immediately  to  do  something  which  would  be  to  the 
dishonor  of  her  husband,  as  if  the  husband  saw  his  wife  in  the  act  of 
going  to  meet  a  paramour,  I  think  he  might  seize  her  and  pull  her 
back.     That  is  not  the  right  that  is  contended  for  in  this  case.     The 
right  really  now  contended  for  is  that  he  may  imprison  his  wife  by 
way  of  punishment,  or  if  he  thinks  that  she  is  going  to  absent  herself 
from  him,  for  any  purpose,  however  innocent  of  moral   offence,  he 
may  imprison  her,  and   it  must  go  to  the  full   length  that  he  may 
perpetually  imprison  her.     I  do   not  think   that  this  is   the  law  of 
England.     But,  assuming  that  there  is  such  a  right,  the  question  arises 
whether  the  way  in  which  and  the  circumstances  under  which  it  has 
been  exercised  in  this  case  are  such  that  the  law  ought  to  give  back 


CHASTISEMENT    (~)R    RESTRAINT    OF   THE    WIFE.  203 

to  the  husband  the  custody  of  this  lady  against  her  will.  The  seizure 
was  made  on  a  Sunday  afternoon  when  she  was  coming  out  of  church, 
in  the  face  of  the  whole  congregation.  He  takes  with  him  to  assist 
him  in  making  the  seizure  a  young  lawyer's  clerk  and  another  man. 
The  wife  is  taken  by  the  shoulders  and  dragged  into  a  carriage,  and 
falls  on  the  floor  of  the  carriage  with  her  legs  hanging  out  of  the 
door.  These  have  to  be  lifted  in  by,  I  believe,  the  clerk.  Her  arm 
is  bruised  in  the  struggle.  She  is  then  driven  off  to  the  husband's 
house,  the  lawyer's  clerk  riding  in  the  carriage  with  them.  Could 
anything  be  more  insulting?  The  lawyer's  clerk  remains  at  the 
house,  and  a  nurse  is  engaged  to  attend  the  wife,  who  is  not  ill. 
Obviously  the  lawyer's  clerk  and  the  nurse  are  to  help  keep  watch 
over  her  and  control  her.  That  in  itself  is  insulting.  She  goes  to 
the  window  in  the  house,  and,  one  of  her  relations  being  outside,  the 
blind  is  immediately  pulled  down.  I  think  that  the  circumstances 
of  this  seizure  and  detention  were  those  of  extreme  insult,  and  I 
cannot  think  that  it  can  be  under  such  circumstances  as  these  the 
husband  has  a  right  to  keep  his  wife  insultingly  imprisoned  until  she 
undertakes  to  consort  with  him.  In  my  opinion,  the  circumstances 
are  such  that  the  court  ought  not  to  give  her  back  into  his  custody. 
He  has  obtained,  it  is  true,  a  decree  for  restitution  of  conjugal 
rights;'  but  that  gives  him  no  power  to  take  the  law  into  his  own 
hands  and  himself  enforce  the  decree  of  the  court  by  imprisonment. 
Formerly  that  decree  might  have  been  enforced  by  attachment  for 
contempt;  but  that  would  have  been  an  imprisonment  by  the  court, 
not  by  the  husband.  The  power  of  attachment  in  such  cases  is  now 
taken  away.  The  suggestion,  therefore,  must  be  that,  though  the 
court  has  no  power  to  force  the  wife  to  restore  conjugal  rights  by 
imprisonment,  the  husband  himself  has  a  right  to  take  her  by  force 
and  imprison  her  without  the  assistance  of  the  court.  I  think  that 
the  passing  of  the  act  of  parliament  which  took  away  the  power  of 
attachment  in  such  cases  is  the  strongest  possible  evidence  to  show 
that  the  legislature  has  no  idea  that  a  power  would  remain  in  the 
husband  to  imprison  the  wife  for  himself;  and  this  tends  to  show 
that  it  is  not  and  never  was  the  law  of  England  that  the  husband 
has  such  a  right  of  seizing  and  imprisoning  the  wife  as  contended  for 

'  "  It  will  readily  be  perceived  that  this  court  can  deal  with  the  controversy 
only  so  far  as  property  is  concerned.  Over  the  conduct  and  acts  of  the  par- 
ties, except  with  reference  to  their  respective  rights  of  property,  and  for  the  pur- 
pose of  enforcing  those  rights  when  ascertained,  this  court  can  exercise  no 
control.  It  has  not  jurisdiction  to  compel  cohabitation  where  one  party  with- 
draws from  the  society  of  the  other  without  justifiable  cause  nor  to  decree  a 
restitution  of  conj'jj:^tiI  rights  withheld.'"  —  Cruger  v.  Douglas,  4  Edw.  Ch.  (N.  Y.), 
433.  506. 


204  HUSBAND   AND    WIFE. 

in  this  case.  If  there  is  now  a  greater  difficulty  than  there  was  in 
enforcing,  or  if  it  is  now  impossible  effectively  to  enforce  a  decree 
for  the  restitution  of  conjugal  rights,  the  legislature  has  caused  this 
by  act  of  parliament,  and  the  legislatur  j  must  deal  with  the  mat- 
ter. For  these  reasons  I  agree  that  the  return  to  the  writ  is  bad,  and 
that  the  husband  has  so  acted  that  we  ought  not  to  give  back  the 
custody  of  this  lady  to  him. 


Ante-nuptial  Torts  by  the  Wife. 

HAWK  V.   HARMAN, 

5  BiNNEY  (Pa.)  43. — 1812. 

Upon  the  trial  of  this  case,  which  was  an  action  by  Hawk  and 
wife  for  slanderous  words  spoken  of  Elizabeth,  the  wife  of  Hawk, 
du77i  sola,  by  Catherine,  the  wife  of  Harman,  (whether  sole  or  covert 
at  the  time,  the  narr.  did  not  state),  the  Common  Pleas  reserved  the 
point,  whether  the  husband  is  liable  for  slanderous  word  spoken  by 
his  wife  before  marriage.  The  verdict  was  for  the  plaintiff,  forty 
shillings  damages,  and  six  cents  costs;  and  the  court,  after  argu- 
ment upon  the  reserved  point,  set  aside  the  verdict,  and  gave  judg- 
ment of  nonsuit,  upon  which  this  writ  of  error  was  brought. 

TiLGHMAN,  C.  J.  The  only  question  in  this  case  is  whether  an 
action  will  lie  against  a  man  and  his  wife  for  slanderous  words 
spoken  by  the  wife  before  marriage.  It  is  a  question  which  does 
not  admit  of  a  doubt.  The  wife  cannot  be  sued  without  her  hus- 
band; and  if  the  action  does  not  lie  against  both,  it  follows  that  a 
woman  by  her  own  act  may  defeat  the  plaintiff's  action,  a  principle 
not  to  be  endured,  unless  a  positive  adjudication  on  the  point  could 
be  produced  in  support  of  it.  But  the  defendant  in  error  relies  on 
the  general  position  to  be  found  in  some  books  of  authority,  that  a 
man  is  liable  to  answer  for  his  wife's  contracts  before  marriage. 
To  be  sure  he  is,  but  it  must  not  be  inferred  that  he  is  not  answera- 
ble for  her  torts  also.  The  expressions  do  not  necessarily  bear 
that  import,  and  in  candid  construction,  they  ought  not  to  be  so 
expounded.  It  would  be  attributing  to  respectable  authors  an  unac- 
countable mistake,  for  there  is  not  wanting  express  authority  to  the 
contrary.  If  s.  feme  sole  is  sued  for  trespass,  and  marries,  the  action 
shall  proceed  against  her,  and  if  she  is  found  guilty,  judgment  and 
execution  shall  be  had  against  her  alone  without  naming  her  hus- 
band.    Doyley  v.   White,  Cro.  Jac.  323,  cited  in   Bailer's  Ni.  Pri.  22. 


POST-NUPTIAL   TORTS   BY   THE   WIFE.  205 

But  if  this  suit  is  brought  after  the  marriage,  for  a  trespass  commit- 
ted by  the  feme  while  sole,  it  shall  be  against  the  husband  and  wife, 
and  what  is  somewhat  singular,  the  writ  charges  the  trespass  as 
having  been  committed  by  both,  because  there  is  no  other  form  of 
writ  in  the  register.  It  was  so  decided  22  Ass.  pi.  87,  Jenk.  Cent. 
23,  pi.  43,  cited  in  4  Vin.  185,  C.  1,  pi.  14.  So  if  a/i?wz^disseisoress  mar- 
ries, the  writ  against  the  husband  and  wife  shall  be,  quod disseisiverunt, 
and  not  quod  uxor  dum  sola  disseisivit.  In  these  cases  there  was  no 
question  about  the  action  lying  against  the  husband  and  wife;  the 
only  doubt  was,  whether  the  form  of  the  writ  was  right.  I  am  there- 
fore of  opinion  that  the  judgment  should  be  reversed,  and  judg- 
ment entered  here  for  the  plaintiff  below  on  the  verdict. 


Post-nuptial  Torts  by  the  Wife. 

KOSMINSKY  V.  GOLDBERG. 

44  Ark.  401. —  1884. 

Smith,  J.  This  action  was  against  the  husband  alone  for  defama- 
tory words  spoken  by  the  wife.  The  complaint  did  not  show  whether 
the  defendant  was  present  or  absent  at  the  time  the  slander  was 
uttered;  and  a  demurrer  to  it  was  sustained  for  non-joinder  of  the 
wife.  The  plaintiff  proposed  to  amend  by  stating  that  the  injurious 
words  were  spoken  in  the  presence  and  hearing  of  the  husband;  but 
the  amendment  was  stricken  out.  By  this  action  we  understand  the 
court  to  have  decided  that  the  amendment  stated  no  case  materially 
different  from  that  which  had  already  been  adjudged  insufficient, 
and  to  have  insisted  that  the  wife  be  brought  in  as  a  party.  The 
plaintiff  declining  to  plead  further,  and  electing  to  rest  on  his  amended 
complaint,  final  judgment  was  entered  dismissing  the  action. 

For  the  wife's  torts,  committed  during  coverture,  the  husband  is 
responsible.  Such  torts  may  be  committed  under  either  of  the  fol- 
lowing circumstances:  i.  Where  the  husband  is  absent  and  had  no 
knowledge  of  the  intended  act,  as  in  Head  v.  Briscoe^  5  Carr.  & 
Payne,  484;  (24  E.  C.  L.  R.  667),  where  a  man  was  held  answerable 
for  a  libel  published  by  his  wife,  although  they  were  permanently 
living  apart.  See,  also,  Catterall  v.  Kenyon^  3  Q.  B.  309;  40  E.  C. 
L.  R.  749.  2.  Where"  the  husband  is  absent,  but  where  the  tort  is 
done  under  his  direction  and  instigation,  as  in  Handy  v.  Foley,  121 
Mass.  259.  3.  Where  the  husband  was  present,  but  the  wife  acted 
of  her  own  volition,  of  which  Cassin  v.  Delaney,  38  N.  Y.  178,  is  an 


206  HUSBAND    AM)    WIFE. 

example.  And  4.  Where  the  tort  is  committed  in  the  company  of 
the  husband,  and  by  his  command  or  encouragement;  for  instances 
of  which  see  Daily  v.  Houston,  58  Mo.  361  ;  Brazil  v.  Moran,  8 
Minn.  236. 

In  the  first  three  cases  they  are  jointly  liable,  and  the  wife  must 
be  joined.  She  is  in  reality  the  offending  party,  and  if  the  marriage 
should  be  dissolved  by  divorce  or  the  death  of  either  spouse  before 
judgment  recovered,  the  liability  of  the  husband  ceases.  He  is 
joined  because  she  cannot  be  sued  alone.  But  in  the  last  case  sup- 
posed, the  law  considers  the  tort  as  committed  by  the  husband,  and 
he  alone  is  liable.  To  exempt  her  from  liability,  however,  requires 
the  concurrence  of  his  presence  and  his  command.  A  wrong  done  by 
his  direction,  but  not  in  his  company,  does  not  excuse  her;  nor  does 
his  presence,  if  unaccompanied  by  his  direction.  The  rule  is  stated 
too  broadly  in  2  Kent's  Com.  149,  where  it  is  said,  "  If  committed 
i!i  his  company,  or  by  his  order,  he  alone  is  liable." 

Here  the  injury  is  alleged  to  have  been  done  in  the  husband's 
presence,  but  not  at  his  instigation.  Yet  his  presence  raises  a  pre- 
sumption that  she  was  acting  under  compulsion.  And  therefore  the 
complaint  states /r/wi?  facie  a  cause  of  action  against  him  alone.  Of 
course  this  presumption  may  be  rebutted  by  proof  that  he  did  not 
authorize  or  influence  her  act.  Pomeroy's  Remedies,  sec.  320; 
Bliss  on  Code  Pleading,  sec.  85. 

The  presumption  of  coercion,  arising  from  the  mere  presence  of 
the  husband  in  the  case  of  crimes,  has  been  abolished  by  statute, 
and  the  excuse  has  been  left  to  be  made  out  by  proofs.  Gantt's 
Dig.  sec.  1233;  Edwards  v.  State,  27  Id.  493. 

Judgment  reversed,  with  directions  to  require  defendant  to  answer 
the  amended  complaint. 


Torts  to  the  Wife. 
LAUGHLIN  V.   EATON. 

54  Me.  156. — 1866. 

Barrows,   J.     To  this  action   for  malicious   prosecution   upon  a 

charge  of  adultery,  the  defendants  seasonably  pleaded  in  abatement 

the  coverture  of  the  plaintiff. 

******** 

The  presiding  judge  found  for  the  defendants,  sustained   the  plea 

and  ordered  the  writ  to  be  abated,  to  which  order  plaintiff  excepts. 

i|c****4(<|i« 


TORTS   TO    THE   WIFE.  20/ 

The  well-known  general  doctrine  of  the  common  law  is,  that  where 
a  wrong  is  committed  against  the  person  of  the  wife  during  coverture, 
as  by  beating  her,  slandering  her  reputation,  or  by  malicious  prose- 
cution, she  cannot  sue  alone.  For  injuries  to  the  wife  occasioning 
to  the  husband  a  deprivation  of  the  society  of  his  wife,  or  of  her 
assistance  in  his  domestic  affairs,  or  by  which  he  is  put  to  expense, 
he  may  have  his  separate  action,  as  where  a  violent  battery  has 
caused  a  long  continued  illness  of  the  wife  or  expense  in  her  cure, 
or  if  she  be  maliciously  indicted  and  thereby  separated  from  him. 
or  he  put  to  expense  in  her  defence.  But  if  the  action  is  brought 
for  her  personal  suffering  and  injury,  the  husband  and  wife  must 
join,  and  care  should  be  taken  not  to  include  in  the  declaration  a 
statement  of  any  cause  of  action  for  which  the  husband  alone  would 
be  entitled  to  recover,  i  Chitty's  PI.  46,  47,  61.  Horton  ^  ux.  v. 
Byles,  I  Siderfin,  387;  Jiussel  &=  iix.  v.  Come,  i  Salkeld,  119;  Hyde  y . 
Scyssor,  Cro.  Jac.  538. 

When  an  injury  is  done  to  both,  as  slander  or  battery  of  husband 
and  wife,  separate  actions  must  be  brought,  one 'by  the  husband 
alone  for  the  injury  to  him,  and  one  by  the  husband  and  wife 
for  the  injury  to  her.  If  both  causes  of  action  are  joined,  it  is 
error.  Ebersoll  v.  Krug  &=  ux.,  in  error,  3  Binn.  555.  There  is 
nothing  in  this  case  which  brings  it  within  any  known  exception  to 
the  general  rule  above  stated.  John  Laughlin  has  not  been  banished 
or  abjured  the  country,  or  deserted  his  wife  and  gone  beyond  seas. 
So  far  as  appears,  he  is  still  in  frequent  communication  with  her,  sup- 
plying her  with  funds  and  only  temporarily,  though  long  absent. 

In  Gregory  v.  Faiil,  15  Mass.  30,  cited  for  plaintiff,  the  wife  of  a 
foreigner,  deserted  by  her  husband  in  a  foreign  country,  who  had 
thereafter  maintained  herself  as  a  single  woman,  and  lived  for  five 
years  in  Massachusetts,  her  husband  never  having  been  within  the 
United  States,  was  holden  competent  to  sue  as  a.  feme  sole.  Sec.  10, 
chap.  61,  of  the  R.  S.  of  1857,  embodies  the  doctrine  thus  laid  down, 
with  some  additions,  as  the  law  of  this  state.  It  is  unnecessary  to 
contrast  the  case  of  Gregory  v.  Paul  with  the  one  at  bar,  or  consider 
further  under  what  circumstances  the  absence  of  the  husband  from 
the  state  will  excuse  his  non-joinder  in  a  suit  of  this  description. 

Nor  do  our  other  statutes  authorizing  married  women  in  certain 
cases  to  maintain  suits  as  if  sole,  enlarge  the  plaintiff's  rights  in  a 
suit  like  this.  Under  sec.  3,  ch.  61,  a  married  woman,  may,  if  she 
pleases,  prosecute  suits  at  law  or  in  equity  for  the  preservation  and 
protection  of  her  property  as  if  unmarried,  and  may  maintain  an 
action  in  her  own  name  to  recover  the  wages  of  her  personal  Idbor, 
not  performed  for  her  own  family. 


21)8  HUSBAND   AND   WIFE. 

But  it  was  determined  by  this  court,  in  Ballard  &>  ux.  v.  Russell^ 
33  Maine,  196,  that  the  statute  enabling  her  to  sue  for  the  preserva- 
tion and  protection  of  her  property  did  not  extend  to  rights  of 
action  for  tort  to  the  person. 

The  plaintiff's  counsel  urges  that,  if  enabled  to  sue  in  her  own 
name,  without  joining  her  husband,  for  the  protection  of  her  prop- 
erty, much  more  ought  she  to  have  that  power  for  the  protection  of 
her  liberty  and  reputation,  when  her  husband  is  out  of  the  juris 
diction,  or  his  consent  cannot  be  had  to  join  in  the  suit. 

The  argument  would  be  appropriately  addressed  to  the  legislature. 

The  present  state  of  the  law  requires  that  the  entry  in  this  case 
should  be 

Exceptions  overruled. 

Appleton,  C.  J.,  Kent,  Walton,  Dickerson  and  Danforth,  JJ., 
concurred.' 


STROOP  V.  SWARTS. 
12  Serg.  &  R.  (Pa.)  76.— 1824. 

This  was  an  action  brought  by  Jacob  Stroop  and  Mary,  his  wife, 
in  the  Court  of  Common  Pleas  of  Perry  county,  to  recover  damages 
for  slanderous  words,  alleged  to  have  been  spoken  of  the  wife  by 
Swarts,  the  defendant  in  error.  The  plaintiffs  had  a  verdict  in  the 
court  below  for  $175,  but  the  court,  on  motion  of  the  defendant's 
counsel,  arrested  the  judgment,  for  which  reason  the  present  writ 
of  error  was  sued  out.  On  the  case  being  called  up  for  argument 
in  this  court,  Penrose,  for  the  defendant  in  error,  alleged  and  proved, 
that  before  errors  were  assigned,  Mary  Stroop,  one  of  the  plaintiffs  in 
error,  was  dead.  He  therefore  moved  that  the  writ  of  error  be  abated, 
and   cited.  Boas  v.  Hiester,  3  Serg.  &  Rawle,  271;   i  Chitty,  PI.  61. 

Wadsworth  and  Metzger,  contra,  ref'erred  to  i  Binn.  172. 

Per  Curiam.  In  this  case,  there  was  no  judgment  for  the  plain- 
tiffs in  the  court  below,  the  judgment  was  arrested.  Now,  this 
court  could  not  give  judgment  for  the  husband  alone,  even  if  they 
should  think  (which  they  do  not),  that  the  judgment  ought  not  to 
have  been  arrested;  because  the  wife,  who  was  the  meritorious 
cause,  is  dead,  and  the  cause  of  action  does  not  survive.  If  the  wife 
had  died  after  the  judgment  had  been  given  for  her  husband  and 
her,  it  would  have  been  different.  The  judgment  would  then  have 
survived  to  the  husband. 

Writ  of  error  abated. 

1  <:'^»  aUo.  ^Vnjf  V.  Paufves,  72  Md.  4St.  Whether,  under  the  Married 
Women'-;  Enabling  Acts,  the  wife  in  an  action  for  ner<;onal  injury  to  her,  may 
rorover  for  impaired  earning  capacity,  see  Texas  b'  P.  Ry.  v.  Humble,  97  Fed. 
837.  and  dissent. 


TORTS    BY    HUSBAND   AND    WIFE.  209 

Torts  by  Husband  and   Wife. 

SIMMONS  V.  BROWN  AND  WIFE. 

5  R.  I.  299.  —1858. 

This  was  an  action  of  the  case,  brought  by  the  plaintiff,  as  the 
owner  of  a  water  privilege  and  cotton  mill  thereon,  in  Johnston, 
against  the  defendants,  husband  and  wife,  for  erecting  a  dam  across 
the  stream  below,  on  the  land  of  the  wife,  and  thereby  casting  back- 
water upon  the  mill  of  the  plaintiff;  the  declaration  claiming  dam- 
ages for  the  loss  of  the  profits  of  his  manufacture  by  the  plaintiff, 
during  the  period  of  time  set  forth,  in  which  he  was  prevented  by 
the  obstruction  from  using  his  mill.  One  count  in  the  declaration 
alleged,  that  the  dam  of  the  defendants  had  been  reduced  under  a 
decree  of  this  court,  in  equity,  upon  a  bill  filed  against  them  by  the 
plaintiff;  the  action  being  now  brought  to  recover  the  damages 
caused  by  the  unlawful  raising  of  the  dam. 

Brayton,  J.  *  *  *  'Y\\it  defendant's  counsel  requested  the 
court  to  charge  the  jury  that  Abby  Brown,  being  a  married  woman, 
and  the  wife  of  the  other  defendant  charged,  and  being  owner  of 
the  fee  of  the  land  upon  which  the  dam  was  built,  and  the  premises 
being  in  the  possession  of  the  husband,  no  action  could  be  maintained 
against  her,  and  no  verdict  could  be  rendered  against  her.  This 
instruction  the  court  declined  to  give;  and  the  defendants  now  move 
for  a  new  trial  for  this,    as  error. 

It  cannot  be  material  to  this  point,  that  the  wrongful  act  was 
committed  on  land  owned  by  the  defendant,  Abby  Brown.  There 
is  no  principle  suggested,  and  certainly  none  can  be  found,  that 
should  thus  change  the  character  of  the  acts  of  the  defendants. 
The  locality  of  the  act  is  not  that  which  can  impress  upon  it  a 
wrongful  character.  It  is  equally  injurious  to  the  plaintiff,  whether 
it  be  done  on  the  defendant's  land,  or  done  upon  the  plaintiff's. 
Equally  immaterial  is  it,  that  the  act  was  done  upon  land  in  the 
possession  of  the  husband,  and  for  the  same  reason.  The  locality 
of  the  act  in  these  particulars  can  have  no  other  effect,  at  most,  than 
as  a  matter  of  evidence  of  the  extent  to  which  the  wife  participated 
in  the  acts  of  the  husband.  The  question,  therefore,  which  is  here 
made  is,  whether  a  married  woman  can  be  jointly  guilty  with  her 
husband  of  a  wrong  of  this  kind;  in  effect,  whether  she  can  be 
guilty  with  him  of  any  trespass;  for  whether  the  injury  arising  from 
it  be  direct  or  consequential,  cannot  be  material. 

In  Marshes  Case,  i  Leon.  312,  it  was  held,  that  where  goods  came 
to  the  wife  alone,  and   both   husband   and  wife  were   charged  with 
converting  them,  the  action  might  be  maintained.     Baldwin  v.  Mar- 
[DoMF.STic  Relations  —  14  1 


210  HUSBAND    AND    WIFE. 

///;,  Owen,  43,  was  also  an  action  ot  trover  against  husband  and  wife, 
alleging  a  conversion  by  both,  to  her  use,  and  was  held  good.  In 
Berry  and  Wife  v.  Nevys,  Cro.  Jac.  66i,  it  was  held,  that  though  the 
joint  conversion  was  well,  yet  that  the  conversion  must  be  alleged 
to  be  to  the  use  of  the  husband,  since  it  could  not  enure  to  the  use 
of  the  wife.  It  was  conceded  that  the  action  was  open  to  this  objec- 
tion only.  In  Draper  v,  Fulkes,  Yelv.  165,  166,  which  was  trover 
against  husband  and  wife,  the  allegation  was  that  the  goods  came  to 
both,  and  that  they  converted  them.  The  objection  to  a  recovery 
in  this  case  was  that  it  charged  a  conversion  on  both,  and  that  a 
feme  covert  could  not  convert;  and  Yelverton  answered,  and  the 
court  allowed,  that  "  the  action  is  grounded  not  upon  property,  but 
possession  only;  and  the  point  is  the  conversion;  and  she  may  as 
well  be  charged,  as  in  trespass  or  disseisin."  Moorefoot  v.  Chenes  and 
Wife,  2  Ld.  Raym.  1395,  was  scire  facias  against  the  defendants  as 
administrators,  and  alleged  the  wasting  of  the  goods  of  the  intestate 
by  both;  and  this  point  was  made,  that  the  wife  could  not  be  guilty. 
It  was  nevertheless  held  good ;  for  that  the  wasting  of  the  estate  was  a 
tort  and  though  2ifeme  covert  might  not  convert,  yet  she  might  waste, 
which  was  a  tort ;  and  this  decision  was  afifirmed  in  the  House  of  Lords. 
In  Smalley  v.  Kerfoot  and  Wife  and  Others,  Andrews,  243,  the  case 
was  trespass  for  entering  the  plaintiff's  house  and  taking  his  goods, 
and  converting  them  to  their  proper  use.  In  this  case  it  was  con- 
ceded that  the  action  would  well  lie  against  both  husband  and  wife 
for  the  trespass.  There  was  a  judgment  by  default,  and  an  assess- 
ment of  damages.  The  point  made  was  upon  a  motion  in  arrest  of 
judgment,  for  that  the  declaration  alleged  a  conversion  to  the  use  of 
the  wife.  This  case  was  argued  a  second  time  at  the  request  of  the 
judges,  and  upon  this  argument  it  was  conceded  that  for  a  battery 
or  other  personal  wrong  committed  by  baron  and  feme,  the  wife  is 
liable  to  an  action  as  well  as  the  husband,  but  as  to  the  conversion, 
it  could  not  be  to  her  use.  The  point  made  was  overruled  because 
the  conversion  was  not  the  gist  of  the  action,  but  matter  of  aggra- 
vation merely.  In  Anon,  i  Vent.  93,  the  declaration  alleged  an 
assault  and  battery  by  both  husband  and  wife,  and  the  husband  was 
found  not  guilty.  There  was  a  motion  in  arrest  of  judgment,  for 
that,  it  being  a  battery  by  the  wife  alone,  he  should  be  joined  for 
conformity  only;  but  the  motion  was  overruled.  But  the  general 
doctrine,  as  well  settled,  is  stated  in  Chitty's  PL  83,  that  husband 
and  wife  may  be  joined  in  all  actions  in  which  two  or  more  persons 
may  be  jointly  guilty,  and  may  be  charged  jointly.  This  ground  for 
a  new  trial  must  be  also  overruled,  and  there  must  be  judgment 
upon  the  verdict. 


■TORTS   Ab    BEl'WEEN    HUSBAND   AND    WIFE,  211 

Torts  as  Between  Husband  and  Wife. 

ABBOTT  V.  ABBOTT. 

67  Me.   304. — 1877. 

Peters,  J.  The  defendants  forcibly  carried  the  plaintiff  to  an 
insane  asylum.  The  case  assumes  the  act  to  have  been  wrongful  and 
wanton.  The  plaintiff  and  one  of  the  defendants,  at  the  time,  were 
husband  and  wife;  since  then  she  was  divorced.  Can  an  action  of 
tort,  for  such  an  injury,  instituted  after  divorce,  be  sustained  by, 
her  against  her  former  husband?  We  have  no  doubt  that  it  cannot 
be  maintained. 

Precisely  the  same  question  was  lately  before  the  English  court, 
and  the  decision  and  the  reasons  on  which  the  decision  is  grounded 
meet  with  our  unqualified  approval.  Phillips  v.  Barnet,  i  Q.  B.  D. 
436.  It  is  there  held  that  the  wife,  after  being  divorced  from  her 
husband,  cannot  sue  him  for  an  assault  committed  upon  her  during 
coverture.  In  the  course  of  the  discussion  in  that  case,  Lush,  J., 
says:  "  Now  I  cannot  for  a  moment  think  that  a  divorce  makes  a 
marriage  void  ab  initio  j  it  merely  terminates  the  relation  of  hus- 
band and  wife  from  the  time  of  the  divorce,  and  their  future  rights 
with  regard  to  property  are  adjusted  according  to  the  decision  of 
the  court  in  each  case;"  Field,  J.,  says:  "  I  now  think  it  clear  that 
the  real  substantial  ground  why  the  wife  cannot  sue  her  husband  is 
not  merely  a  difficulty  in  the  procedure,  but  the  general  principle  of 
the  common  law,  that  husband  and  wife  are  one  person;"  and  Black- 
burn, J.,  states  the  objection  to  be  "  not  the  technical  one  of  parties, 
but  because,  being  one  person,  one  cannot  sue  the  other." 

The  theory  upon  which  the  present  action  is  sought  to  be  main- 
tained is,  that  coverture  merely  suspends  and  does  not  destroy  the 
remedy  of  the  wife  against  her  husband.  But  the  error  in  the  pro- 
position is  the  supposition  that  a  cause  of  action  or  a  right  of  action 
ever  exists  in  such  a  case.  There  is  not  only  no  civil  remedy,  but 
there  is  no  civil  right,  during  coverture,  to  be  redressed  at  any  time. 
There  is,  therefore,  nothing  to  be  suspended.  Divorce  cannot  make 
that  a  cause  of  action  which  was  not  a  cause  of  action  before  divorce. 
The  legal  character  of  an  act  of  violence  by  husband  upon  wife  and  of 
the  consequences  that  flow  from  it,  is  fixed  by  the  condition  of  the 
parties  at  the  time  the  act  is  done.  If  there  be  no  cause  of  action 
at  the  time,  there  never  can  be  any. 

The  doctrine  advocated  by  the  plaintiff  finds  no  support  from  any 
of  the  principles  of  the  common  law.      According  to  the  oldest  au- 


212  HUSBAND    AND    WIFE. 

ihorities,  the  being  of  the  wife  became,  by  marriage,  merged  in  the 
being  of  the  husband.  Her  disabilities  were  about  complete.  By 
the  earliest  edicts  of  courts,  he  had  a  right  to  strike  her  as  a 
punishment  for  her  conduct,  and  her  only  remedy  was,  that  "she 
hath  retaliation  to  beat  him  again  if  she  dare."  And  Chancellor 
Kent  lays  down  the  doctrine,  not  contradicted  or  challenged  in  any  of 
the  editions  of  his  commentaries,  that,  "as  the  husband  is  the 
guardian  of  the  wife,  and  bound  to  protect  and  maintain  her,  the  law 
has  given  him  a  reasonable  superiority  and  control  over  her  person, 
and  he  may  even  put  gentle  restraints  upon  her  liberty,  if  her  con- 
duct be  such  as  to  require  it,  unless  he  renounces  that  control  by 
articles  of  separation,  or  it  be  taken  from  him  by  a  qualified  divorce." 
2  Kent  Com.  i8o.  But  there  has  been  for  many  years  a  gradual  evo- 
lution of  the  law  going  on,  for  the  amelioration  of  the  married 
woman's  condition,  until  it  is  now,  undoubtedly,  the  law  of  England 
and  of  all  the  American  states,  that  the  husband  has  no  right  to  strike 
his  wife,  to  punish  her,  under  any  circumstances  or  provocation 
whatever.  See,  upon  this  subject,  the  cases  collected  in  a  learned 
and  instructive  note  to  the  case  of  Conwiotnvealth  v.  Barry,  in  2  Green's 
Cr.  L.  Reports,  286.  Still,  the  state  of  the  old  common  law  serves 
to  show  the  basis  upon  which  the  marriage  relation  subsisted;  and 
we  do  not  perceive  that  there  has  been,  either  by  legislative  enact- 
ment or  by  the  growth  of  the  law  in  adapting  itself  to  the  present 
condition  of  society,  any  change  in  that  relation  which  can  afford 
the  plaintiff  a  remedy.  So  to  speak,  marriage  acts  as  a  perpetually 
operating  discharge  of  all  wrongs  between  man  and  wife,  committed 
by  one  upon  the  other.  As  said  by  Settle,  J.,  in  State  v.  Oliver,  70 
N.  C.  60,  "  it  is  better  to  draw  the  curtain,  shut  out  the  public  gaze, 
and  leave  the  parties  to  forget  and  forgive." 

We  are  not  convinced  that  it  is  desirable  to  have  the  law  as  the 
plaintiff  contends  it  to  be.  There  is  no  necessity  for  it.  Practically, 
the  married  woman  has  remedy  enough.  The  criminal  courts  are 
open  to  her.  She  has  the  privilege  of  the  writ  of  habeas  corpus,  if 
unlawfully  restrained.  As  a  last  resort,  if  need  be,  she  can  prose- 
cute at  her  husband's  expense  a  suit  for  divorce.  If  a  divorce  is 
decreed  to  her,  she  has  dower  in  all  his  estate,  and  all  her  needs  and 
all  her  causes  of  complaint,  including  any  cruelties  suffered,  can  be 
considered  by  the  court,  and  compensation  in  the  nature  of  alimony 
allowed  for  them.  In  this  way  all  matters  would  be  settled  in  one 
suit  as  a  finality. 

It  would  be  a  poor  policy  for  the  law  to  grant  the  remedy  asked 
for  in  this  case.  If  such  a  cause  of  action  exists,  others  do.  If  the 
wife  can  sue  the  husband,  he  can  sue  her.      If  an  assault  was  action- 


TORTS   AS   BETWEEN   HUSBAND   AND    WIFE.  21 3 

able,  then  would  slander  and  libel  and  other  torts  be.  Instead  of  set- 
thng,  a  divorce  would  very  much  unsettle  all  matters  between  married 
parties.  The  private  matters  of  the  whole  period  of  married  exist- 
ence might  be  exposed  by  suits.  The  statute  of  limitations  could 
not  cut  off  actions,  because  during  coverture  the  statute  would  not 
run.  With  divorces  as  common  as  they  are  nowadays,  there  would 
be  new  harvests  of  litigation.  If  such  a  precedent  was  permitted, 
we  do  not  see  why  any  wife  surviving  the  husband  could  not  main- 
tain a  suit  against  his  executors  or  administrators  for  defamation, 
or  cruelty,  or  assault,  or  deprivations  that  she  may  have  wrongfully 
suffered  at  the  hands  of  the  husband;  and  this  would  add  a  new 
method  by  which  estates  could  be  plundered.  We  believe  the  rule, 
which  forbids  all  such  opportunities  for  law  suits  and  speculations 
to  be  wise  and  salutary  and  to  stand  on  the  solid  foundations  of 
the  law. 

The  plaintiff  invokes  the  case  of  Blake  v.  Blake,  64  Maine,  177,  as 
supporting  her  right  to  sue.  That  was  a  suit  in  assumpsit.  In  mat- 
ters of  contract  there  may  be  a  cause  of  action  during  coverture, 
not  enforceable  by  the  ordinary  methods  until  afterwards.  The  com- 
mon law  has  been  so  far  abrogated  by  the  force  of  various  legislative 
acts  as  to  allow  contracts  to  be  made  by  husband  and  wife  with  each 
other.  And,  to  a  certain  extent,  contracts  between  man  and  wife 
always  were  upheld  in  courts  of  chancery.  That  case,  therefore, 
differs  from  this. 

Then,  if  the  husband  is  not  liable,  the  question  arises  whether  the 
codefendants  are  liable  in  this  action.  We  think  it  follows  from  the 
previous  reasoning  that  they  Are  not.  The  true  test  as  to  their 
liability  is,  whether  an  action  could  have  been  maintained  against 
them  at  the  tinfie  of  the  act  complained  of.  It  is  clear  that  no  action 
was  then  maintainable.  If  the  co-defendants  had  been  then  sued, 
the  action  must  have  been  in  the  name  of  the  husband  and  wife,  and 
the  husband  would  have  sued  to  recover  damages  for  an  injury 
actually  committed  by  himself.  Husband  and  wife  must  declare 
that  the  injury  was  ad  damnum  ipsorum.  She  cannot,  at  common 
law,  sue  in  her  own  name  alone,  nor  in  his  without  his  consent.  She 
cannot  appoint  an  attorney,  ordinarily,  but  he  must  do  it  for  her. 
His  conduct  and  admissions  can  affect  the  suit.  He  can  release  the 
cause  of  action  and  she  cannot.  She  could  do  no  act  to  redress  an 
injury  to  her  without  his  concurrence.  Nor  has  the  common  law 
been  changed  in  any  of  these  respects  until  1876;  which  was  after 
this  action  was  commenced.  Laws  of  1876,  ch.  112.  The  damages 
recoverable  in  an  action  would  have  belonged  to  him,  and  not  to  her. 
And,  at  the  same  time,  if  she  had  committed  a  tort,  he  would  have 


214  HUSBAND    AND    WIFE. 

be-Ill  civilly  liable  for  it.  It  is  very  certain,  therefore,  that  no  action 
could  ever  liave  been  sustained  against  them  in  his  name.  They 
merely  aided  and  assisted  him.  But  if  there  was  no  injury  to  him  there 
was  none  to  her.  They  were  one.  Without  doubt,  after  the  death  of 
the  husband,  a  wife  may  maintain  an  action  in  her  own  name  for  a 
wrong  committed  upon  her  while  her  husband  was  alive,  if  no  action 
was  instituted  nor  the  cause  of  action  released  during  his  lifetime; 
and  undoubtedly  the  same  right  follows  after  a  divorce  a  vinculo 
matrimonii. 

But  she  can  only  recover  for  such  a  wrong  as  she  and  her  husband 
could  have  recovered  for  in  their  joint  names  while  the  marriage 
relation  subsisted.  She  succeeds  after  death  or  divorce  to  just  such 
rights  as  existed  before  that  time.  The  language  of  the  law  is  that 
the  right  survives  to  her.  But  there  must  be  some  right  in  existence 
to  survive.  Here  there  was  none.  A  thing  cannot  continue  after 
an  event  which  does  not  exist  before.  It  would  not  be  the  survival 
of  a  claim,  but  would  be  one  newly  created.  Norcross  v.  Stuart,  50 
Maine,  87;  Marshall  v.  Oakes,  51  Maine,  308;  Ballard  v.  Russell, 
33  Maine,  196;  Laughlin  v.  Eaton,  54  Maine,  156;  West  y .  "jfordati,  62 
Maine,  484;  Hasbrouck  v.  Weaver,  10  Johns.  247;  Snyder  v.  Sponablc, 
I  Hill  (N.  Y.),  567;  Bacon  Ab.  Baron  and  Feme,  K. ;  Shaddock  v. 
Clifton,  22  Wis.  114. 

Plaiptiff  nonsuit. 

Appletox,  C.  J.,  Walton,  Dickerson  and  Virgin,  JJ.,  con- 
curred. 

Barrows,  J.,  concurred  in  the  result. 


Torts  to  the  Husband  in  His  Marital  Relation. 

SKOGLUND  V.  MINNEAPOLIS  STREET  RY.  CO. 

45  Minn.  330. — 1891. 

Action  brought  in  the  District  Court  for  Hennepin  county,  to 
recover  $3,400  damages  for  injuries  to  plaintiff's  wife.  The  plaintiff 
appeals  from  an  order  by  Lochren,  J.,  refusing  a  new  trial  after  a 
dismissal  ordered  at  the  trial. 

Gilfillan,  C.  J.  The  plaintiff  and  his  wife,  while  riding  in  one 
of  defendant's  cars,  were  both  at  the  same  time  injured  by  the 
same  accident  or  act  of  negligence  of  defendant.  Plaintiff  brought 
an  action  and  recovered  for  the  injury  to  himself.     He  brings  this 


TORTS   TO    THE    HUSBAND    IN    MARITAL   RELATION.        21 5 

action  alleging  the  negligence  of  the  defendant,  the  injury  to 
his  wife,  in  consequence  whereof  he  lost  her  services  and  society, 
and  was  put  to  expenses  for  physicians  and  medicines  and  the  care  of 
his  wife.  In  its  answer  the  defendant  alleged  the  former  action  and 
recovery  by  plaintiff  in  bar  of  this  action,  and  the  court  below  held 
it  a  bar,  and  ordered  judgment  for  defendant  on  the  pleadings. 
This  appeal  is  from  an  order  denying  plaintiff's  motion  for  a  new 
trial.  The  case  raises  the  question.  Was  the  cause  of  action  in  the 
first  action  the  same  as  in  this  ?  Is  this  an  attempt  to  recover  damages 
that  belonged  to  that  cause  of  action?  We  think  the  decision  of  the 
court  below  was  erroneous,  not  because  one  action  was  to  recover 
for  an  injury  to  what  are  termed  the  absolute  rights  of  plaintiff,  and 
the  other  for  injury  to  his  relative  rights,  or  rights  he  possessed  by 
reason  of  his  relation  to  his  wife,  but  because  his  right  to  recover  in 
this  case  will  depend  on  a  different  state  of  facts  from  those  which 
would  sustain  a  recovery  in  the  other  case.  In  the  action  for  injury 
to  himself  all  he  needed  to  show,  in  order  to  recover  nominal  damages 
at  least,  was  the  negligence  of  the  defendant  and  the  consequent 
injury  to  himself.  But  proof  of  the  negligence  and  injury  to  the 
wife  would  not  sustain  the  husband's  action  in  this  case.  The  cause 
of  the  action  which  those  facts  alone  show  belongs  to  the  wife. 
Those  facts  go  to  make  up  the  husband's  cause  of  action,  but  alone 
they  are  not  enough.  In  addition  to  them  there  must  exist  the  fact 
that,  by  reason  of  the  injury  so  caused,  he  has  been  deprived  of  her 
society  or  services,  or  has  been  put  to  expense.  Such  loss  is  of  the 
substance  of  his  cause  of  action.  As  said  in  Todd  v.  Redford^  11 
Mod.  264:  "Husband  and  wife  cannot  join  in  assault  and  battery 
per  quod  consortium  amtsit,  for  the  per  quod  in  such  case  is  the  gist 
of  the  action."  In  other  words,  the  gist  of  the  husband's  cause  of 
action  on  account  of  an  injury  to  his  wife  is  not  the  injury  itself, 
but  the  consequence  of  the  injury  in  depriving  him  of  his  common- 
law  right  to  her  society  or  services,  or  in  imposing  on  him  the  com- 
mon-law duty  to  care  for  her.  A  case  may  easily  be  imagined 
where,  for  an  injury  to  her  person,  a  cause  of  action — a  technical 
cause  of  action  at  least  —  would  instantly  accrue  to  the  wife,  but 
where  none  would  ever  accrue  to  the  husband,  for  the  reason  that 
none  of  the  above  injurious  consequences  to  his  relative  rights  would 
follow.  Where  a  cause  of  action  arises  from  a  wrongful  injury,  it 
arises  at  once;  and  in  such  case  the  subsequently  ascertained  or 
developed  consequences  of  the  injury  are  items  that  might  exist 
without  them.  But  in  an  action  by  a  husband  on  account  of  an 
injury  to  his  wife,  the  consequences  of  loss  of  her  society  or  services 
are  not  items  of  damages  pertaining  to  an  already  existing  cause  of 


2iG  HUSBAND    AND    WIFE. 

action,  or  to  a  cause  of  action  which  might  exist  without  them,  but 
they  are  essential  to  the  cause  of  action  itself,  which  cannot  arise 
until  such  consequences  have  followed  the  injury.  If  it  could  be 
said  that  the  plaintiff's  cause  of  action  in  his  first  action  arose  upon 
the  negligence  alone,  then  all  the  injurious  consequences  of  that 
negligence,  the  injury  to  his  person,  the  loss  of  his  wife's  society 
and  services,  caused  by  the  injury  to  her  person,  might  be  regarded 
as  items  of  damage  in  that  cause  of  action.  But  no  cause  of  action 
could  accrue  upon  the  negligence  alone.  That  cause  of  action 
accrued  only  upon  injury  to  his  person  caused  by  the  negligence, 
and,  when  they  concurred,  his  cause  of  action  was  complete.  The 
loss  of  his  wife's  services  had  no  connection  with  that  injury. 
That  cause  of  action  was  not  a  consequence  of  it,  and  not  an  item 
of  damage  pertaining  to  it.  His  right  to  recover  for  such  loss  was 
independent,  and  would  have  existed  had  that  cause  of  action  not 
accrued. 

We  have  been  able  to  find  but  two  cases  in  the  United  States 
analogous  to  this.  In  Cincinnati,  etc.  R.  Co.  v.  Chester,  57  Ind.  297, 
the  plaintiff  had  joined  in  one  count  a  cause  of  action  for  an  injury 
to  himself  with  a  claim  for  damages  for  loss  of  services  of  his  wife, 
and  for  expenses  in  healing  injuries  to  his  child ;  the  three  having  been 
injured  at  the  same  time  by  the  same  negligence  of  defendant.  On 
defendant's  motion  to  require  plaintiff  to  state  the  separate  claims 
for  damage  in  separate  counts  or  paragraphs,  the  Supreme  Court 
held  the  motion  properly  denied,  saying:  "It  seems  to  us  *  *  * 
they  would  really  constitute  but  a  single  cause  of  action."  Toum  of 
Newbury  v.  Cofin.  etc.  R.  Co.,  25  Vt.  377,  was  an  action  by  the  town 
to  recover  damages  it  had  been  compelled  to  pay  for  an  injury  to  the 
person  caused  by  a  defect  in  a  highway  which,  as  between  it  and  the 
town,  defendant  was  under  a  duty  to  keep  in  repair.  Husband  and 
wife  were  at  the  same  time  injured  in  consequence  of  the  defect. 
The  husband  sued  the  town  for  the  injury  to  himself,  recovered  judg- 
ment, which  the  town  paid,  and  sued  and  recovered  against  defendant 
for  that.  The  husband  also  sued  the  town  and  recovered  judgment 
on  account  of  the  injury  to  his  wife,  and  the  town  paid  it,  and  sued 
defendant  for  it.  The  defendant  pleaded  in  bar  the  former  recovery 
against  it.  Speaking  of  the  recovery  against  the  town  on  account 
of  the  injury  to  the  wife,  in  reference  to  the  recovery  for  injury 
to  the  husband,  the  court,  Redfield,  C.  J.,  said:  "  For  it  is  as  much  a 
distinct  matter  as  if  the  persons  had  been  strangers  to  each  other, 
and  as  much,  I  think,  as  if  the  persons  had  been  injured  at  different 
times,  by  reason  of  the  same  neglect  of  defendant."  The  two  cases 
seem  directly  opposed  to  each  other,  though  neither  is  particularly 


TORTS    TO    THE    HUSBAND    IN    MARITAL    RELATION.        21 7 

satisfactory  as  an  authority.      So  far  as  they  determine  the  question 
here  involved,  the  latter  is  more  consistent  with  principle. 
Order  reversed.' 


RINEHART  v.   BILLS. 

82  Mo.  534. — 1884. 

Martin,  C.  On  the  26th  day  of  January,  1880,  the  plaintiff  filed 
a  complaint  in  equity  against  the  defendant.  In  this  complaint 
another  party  was  originally  included  as  defendant,  but  was  dis- 
charged before  trial.  The  object  of  the  suit  was  to  enjoin  the  trans- 
fer and  collection  of  a  certain  promissory  note  in  the  sum  of  $550, 
made  by  the  plaintiff,  to  enforce  its  surrender  and  cancellation,  and 
obtain  a  judgment  for  a  part  payment  indorsed  upon  it.  It  is  alleged 
in  the  petition  that  the  note  was  without  consideration,  and  was 
obtained  by  false  representations,  by  threats  of  suit,  and  of  personal 
violence.  The  defendant,  in  his  answer,  denied  the  allegations  of  the 
petition  and  recited  the  facts  constituting  the  consideration  of  the 
note,  which,  in  his  own  language,  read  as  follows: 

"  Defendant,  further  answering,  says:  That  on  or  about  the  nth 
day  of  November,  1879,  he  learned  for  the  first  time  that  plaintiff, 
for  a  long  time  thereto,  to  wit,  for  eighteen  months,  then  last  past, 
had  been  making  love  to  his  (defendant's)  wife,  whenever  and 
wherever  he  could  meet  her.  That  he  had  plied  every  art  and  used 
every  device  in  his  power  to  win  her  love  and  esteem  and  to  alienate 
and  estrange  her  from  her  husband.  That  he  had  told  her,  at  divers 
times  and  places,  that  he  loved  her  deeply,  devotedly,  madly,  and 
that  he  could  not  live  without  her.  That  plaintiff  had  written  her 
love-letters  on  divers  occasions;  had  given  her  a  fine  gold  finger- 
ring,  and  desired  to  leave  and  abandon  his  own  wife  and  children, 
and  take  defendant's  wife  and  go  to  a  new  country  where  they  would 
not  be  known,  and  could  marry  and  live  together  as  man  and  wife. 

'  In  Kujek  V.  Goldman,  150  N.  Y.  176  (i8g6),  it  is  held  that  one  who,  in  the  be- 
lief that  a  woman  is  virtuous,  is  induced  to  marry  her  by  the  false  representa- 
tions of  a  third  person,  by  whom  she  is  at  the  time  pregnant,  may  maintain  an 
action  for  damages  against  the  wrongdoer  upon  the  broad  ground  of  the  loss  of 
consortium,  to  which  the  husband  is  entitled,  and  of  which,  by  the  fraud  complained 
of.  he  has  been  deprived. 

In  Holieman  v.  Harward,  119  N,  C.  150,  25  S.  E.  Rep.  972,  it  is  held  that  an 
action  for  damages  will  lie  at  the  suit  of  a  husband  against  a  druggist  wlio,  in 
violation  of  the  express  orders  of  ihe  husoaiid,  has  sold  laudanum  to  the  wife, 
in  consequence  of  whicn  she  has  become  a  confirmtrd  subject  of  the  opium  haoit, 
resulting  in  tne  loss  ol  her  services  and  Louipanioiisnip. 


2l8  HUSBAND    AM)    WIKE. 

That  plaintiff  was  rich  and  would  maintain  her  in  luxury  and  ease, 
and  she  could  live  like  a  lady  without  labor  and  toil.  Defendant, 
further  answering,  states  that  plaintiff,  by  his  persistent  efforts, 
finally  succeeded  in  alienating  and  estranging  the  love  and  affections 
of  defendant's  wife  from  defendant,  and  procured,  in  the  manner 
and  by  the  means  aforesaid,  her  consent  to  leave  and  desert  her  hus- 
band and  elope  with  plaintiff." 

The  answer  goes  on  to  recite  that  she  had  relented  her  rash 
promise  to  elope  with  plaintiff,  had  confessed  everything  to  her  hus- 
band, and  begged  to  remain  with  him  as  his  wife  under  the  security  of 
pardon  and  forgiveness.  It  is  further  alleged  in  substance  that  the 
defendant,  smarting  under  the  wrongs  inflicted  upon  him  by  the 
plaintiff,  repaired  to  the  plaintiff's  residence  with  his  attorney,  with 
a  view  of  settling  for  these  wrongs  without  suit;  that  in  the  interview 
the  plaintiff  admitted  the  facts  as  charged  against  him,  and  agreed 
to  pay  defendant,  in  liquidation  of  all  damages  by  him  sustained,  and 
in  final  settlement  thereof,  the  sum  of  $600;  that  he  paid  down  $50 
and  gave  the  note  in  controversy  for  fhe  remaining  $550,  payable 
four  months  from  date;  that  he  afterwards  paid  $205  on  account  of 
the  note,  which  payment  was  endorsed  on  the  same.  The  answer 
concludes  with  a  prayer  that  the  injunction  be  dissolved  and  judg- 
ment be  rendered  in  defendant's  favor,  in  the  amount  of  the  note 
remaining  unpaid,  which  is  stated  to  be  $345  with  interest. 

The  plaintiff  interposed  a  demurrer  to  this  answer,  which  was 
overruled.  The  case  was  then  tried  by  the  court  without  the  inter- 
vention of  a  jury.  The  court  found  the  issues  in  favor  of  defend- 
ant, declaring  in  its  decree  that  the  matters  and  allegations  in 
plaintiff's  petition  are  untrue  and  not  sustained  by  the  evidence. 
The  injunction  was  dissolved  and  the  sum  of  $40.05  was  assessed  as 
damages  on  the  injunction  bond  against  the  plaintiff  and  his  sure- 
ties. It  was  also  adjudged  that  defendant  recover  of  plaintiff  the 
balance  due  on  the  note  sought  to  be  enjoined.  The  bill  of  excep- 
tions does  not  contain  the  evidence,  but  merely  recites  that  evidence 
was  submitted  by  both  parties  tending  to  prove  the  allegations  of 
their  pleadings. 

Only  one  question  is  presented  to  us  in  the  record,  for  determi- 
nation. The  question  involves  the  sufficiency  of  the  defence,  and  is 
raised  on  the  demurrer  and  in  the  motions  made  after  judgment. 
The  plaintiff  contends  that  as  the  answer  fails  to  show  that  defend- 
ant's wife  had  been  actually  debauched  or  seduced  away  from  him, 
no  wrong  had  been  inflicted  upon  him,  for  which  an  action  lies;  and 
that  the  note  taken  in  settlement  of  the  supposed  wrong  was  void  as 
being  without  consideration.      This  position  cannot  be  maintained 


TORTS   TO    THE    HUSBAND    IN    MARITAL    RELATION.        219 

upon  either  principle  or  authority.  The  injury  to  defendant  consists 
in  the  alienaiion  of  his  wife's  affections  with  malice  or  improper 
motives.  Debauchery  and  elopement  when  they  occur  are  only  the 
immediate  and  legitimate  consequences  of  the  wrong.  That  the 
injury  in  this  instance  did  not  culminate  in  adultery  and  elopement. 
is  a  fact  not  due  to  the  plaintiff's  forbearance,  but  to  the  wife's  pru- 
dent reflection  and  laudable  repentance.  The  alienation  of  the  wife's 
affections,  for  which  the  law  gives  redress,  may  be  accomplished 
notwithstanding  her  continued  residence  under  her  husband's  roof. 
Indeed  it  has  been  not  unfrequently  remarked  by  authors  and  jurists, 
that  such  continued  residence  after  the  alienation  has  been  effected, 
so  far  from  leaving  the  husband  without  a  good  cause  of  action, 
contributes  an  aggravation  to  his  injury,  from  which  an  elopement 
might  well  be  accepted  in  the  nature  of  an  alleviation.  Schouler's 
Dom.  Rel.  57;  Cooley  on  Torts,  224;  Hoard n.  Peck,  56  Barb.  202; 
Hecrmance  V .  J^ames,  47  Barb.  120. 

I  think  it  would  be  difficult  to  regard  it  in  any  other  light  in  the 
absence  of  contrition  or  change  of  heart.  The  demurrer  admits  the 
salacious  and  seductive  solicitations  of  the  plaintiff,  extending  over 
a  period  of  eighteen  months.  It  also  admits  the  fact  of  actual 
estrangement  and  alienation  which  constitutes  the  essence  of  the 
offence.  Everything  which  follows  afterwards  can  be  only  in  the 
nature  of  aggravation,  mitigation  or  reparation  of  the  wrong  in- 
flicted upon  the  sanctity  of  the  defendant's  home. 

I  may  add  here  by  way  of  allusion  to  the  consideration  of  the  note, 
that  the  compromise  of  a  doubtful  claim  asserted  in  good  faith, 
furnishes  a  valuable  consideration  to  support  a  promise,  i  Par. 
Cont.  438,  sec.  4  (6th  ed.) 

The  judgment  is  affirmed.     All  concur.' 


FOOT  V.  CARD. 


58  Conn.  i. —  1889. 

Action  for  the  alienation  by  the  defendant  of  the  affections  of 
the  plaintiff's  husband. 

Pardee,  J.  *  *  *  For  the  sole  purpose  of  testing  the  sufficiency 
of  the  pleadings  the  defendant  admits  by  her  demurrer  that  from  1872 
to  this  present  she  has  alienated  from  the  plaintiff  the  conjugal  affec- 
tion of  her  husband,  induced  him  to  withhold  from  her  his  conjugal 
society,  and  herself  has  smce  lived  in  continual  adultery  with  him. 
She  denies,  however,  that  the  kiw  has  any  form  or  mode  of  redress 

'  Contra,  that  no  action  will  lie  merely  for  alienation  of  affections,  Houghton  v. 
Rice,  174  Ma?s.  366. 


220  HUSBAND   AND   WIFE. 

for  this  wrong.  The  case  is  reserved  for  the  advice  of  this  court  as 
to  the  judgment  to  be  rendered. 

So  far  forth  as  the  husband  is  concerned,  from  time  immemorial 
the  law  has  regarded  his  right  to  the  conjugal  affection  and  society 
of  his  wife  as  a  valuable  property,  and  has  compelled  the  man  who 
has  injured  it  to  make  compensation.  Whatever  inequalities  of  right 
as  to  property  may  result  from  the  marriage  contract,  husband  and 
wife  are  equal  in  rights  in  one  respect,  namely,  each  owes  to  the 
other  the  fullest  possible  measure  of  conjugal  affection  and  society; 
the  husband  to  the  wife  all  that  the  wife  owes  to  him.  Upon  princi- 
ple this  right  in  the  wife  is  equally  valuable  to  her,  as  property,  as 
is  that  of  the  husband  to  him. 

Her  right  being  the  same  as  his  in  kind,  degree  and  value,  there 
would  seem  to  be  no  valid  reason  why  the  law  should  deny  to  her 
the  redress  which  it  affords  to  him.  But  from  time  to  time  courts, 
not  denying  the  right  of  the  wife  in  this  regard,  not  denying  that  it 
could  be  injured,  have  nevertheless  declared  that  the  law  neither 
would  nor  could  devise  and  enforce  any  form  of  action  by  which 
she  might  obtain  damages. 

In  3  Blackstone's  Commentaries,  143,  the  reason  for  such  denial 
is  thus  stated.  "  The  inferior  hath  no  kind  of  property  in  the  com- 
pany, care  or  assistance  of  the  superior,  as  the  superior  is  held  to 
have  in  those  of  the  inferior;  therefore,  the  inferior  can  suffer  no 
loss  or  injury." 

Inasmuch  as  by  universal  consent  it  is  of  the  essence  of  every 
marriage  contract  that  the  parties  thereto  shall,  in  regard  to  this 
particular  matter  of  conjugal  society  and  affection,  stand  upon  an 
equality,  we  are  unable  to  find  any  support  for  the  denial  in  this 
reason,  and  the  right,  the  injury,  and  the  consequent  damage,  being 
admitted,  then  comes  into  operation  another  rule,  namely,  that  the 
law  will  permit  no  one  to  obtain  redress  for  wrong  except  by  its 
instrumentality,  and  it  will  furnish  a  mode  for  obtaining  adequate 
redress  for  every  wrong.  This  rule,  lying  at  the  foundation  of  all 
law,  is  more  potent  than,  and  takes  precedence  of,  the  reason  that 
the  wife  is  in  this  regard  without  the  pale  of  the  law  because  of  her 
inferiority. 

In  Lynch  v.  Knight,  9  House  of  Lords  Cases,  589,  the  wife,  with 
whom  the  husband  was  joined  for  conformity,  complained  that  the 
defendant,  a  man,  had  alienated  from  her  the  conjugal  affection  of 
her  husband  and  deprived  her  of  his  conjugal  society  by  falsely 
asserting  to  him  that  she  had  been  guilty  of  unchaste  conduct;  and 
asked  damages.  The  defendant  had  judgment  for  the  reason  that 
the  court  was  of  opinion  that  the  statement  by  the  defendant  to  the 


TORTS    TO    THE    HUSBAND    IN    MARITAL    RELATION.        221 

husband  did  not,  as  a  fact,  occasion  the  alienation  of  affection  and 
consequent  separation  complained  of.  In  dismissing  the  case  for 
this  reason  the  lord  chancellor  said:  "Although  this  is  a  case  of 
first  impression,  if  it  can  be  shown  that  there  is  presented  to 
us  a  case  of  loss  and  injury  from  the  act  complained  of,  we  are 
bound  to  say  that  this  action  lies.  Nor  can  I  allow  that  the  loss  of 
consortium^  or  conjugal  society,  can  give  a  cause  of  action  to  the  hus- 
band alone.  *  *  *  T\\t  loss  of  conjugal  society  is  not  a  pecu- 
niary loss,  but  I  think  it  may  be  a  loss  which  the  law  may  recognize 
to  the  wife  as  well  as  to  the  husband."  Lord  Cranworth  said: 
"  In  the  view  I  take  of  this  I  do  not  feel  called  upon  to  express  a 
decided  opinion  on  this  point.  I  believe  your  lordships  are  not  all 
agreed  on  it;  and  I  will  therefore  only  say  that  I  am  strongly  inclined 
to  think  that  the  view  taken  by  my  late  noble  friend"  (the  lord 
chancellor)  "was  correct." 

Wherever  there  is  a  valuable  right  and  an  injury  to  it,  with  con- 
sequent damage,  the  obligation  is  upon  the  law  to  devise  and  enforce 
such  form  and  mode  of  redress  as  will  make  the  most  complete  repa- 
ration. A  technicality  must  not  be  permitted  to  work  a  denial  of 
justice.  The  defendant  has  no  possible  interest  in  requiring  the  hus- 
band to  be  co-plaintiff,  other  than  that  she  should  have  security  for 
her  costs  in  this  suit,  and  be  protected  from  a  second  judgment  upon 
the  same  cause  of  action  in  his  name.  As  she  is  in  no  danger  of  a 
second  judgment,  and  can  compel  the  plaintiff  to  give  security  for 
costs,  it  is  simply  an  empty  technicality  which  she  here  interposes. 
There  are  good  reasons  for  the  rule  that  the  husband  should  join  in 
a  complaint  for  damages  resulting  from  an  injury  to  the  person, 
property,  reputation  or  feelings  of  the  wife  in  every  case  other  than 
that  before  us.  Whenever  in  any  of  these  she  suffers,  presumably 
he  suffers;  he  has  a  direct  pecuniary  interest  in  the  result;  and  the 
defendant  is  entitled  to  protection  from  a  second  judgment.  But, 
in  the  case  before  us,  it  is  the  pith  and  marrow  of  the  complaint  that 
in  alienating  the  husband's  conjugal  affection  from  the  wife,  in 
inducing  him  to  deny  his  conjugal  society  to  her,  in  persuading  him 
to  give  his  adulterous  affections  and  society  to  the  defendant,  the 
latter  has  inflicted  upon  the  plaintiff  an  injury  by  which  from  the 
nature  of  the  case  it  is  impossible  for  the  husband  to  suffer  injury; 
for  which  it  is  impossible  for  him  to  ask  redress  either  for  himself 
or  for  his  wife.  To  ask  in  his  name  would  be  to  plant  the  seeds  of 
death  in  the  cause  at  the  outset,  and  the  law  does  not  compel  those 
who  have  suffered  wrong  so  to  ask  for  redress  as  to  insure  denial. 

In  a  case  of  this  kind  the  wife  can  only  ask  for  damages  by  and  for 
herself;  the  law  cannot   make  redress  otherwise  than  to  her  solely, 


222  HUSBAND    AND    WIKE. 

apart  from  all  others,  especially  apart  from  her  husband.  For  no 
theory  of  the  law  as  to  the  merger  of  the  rights  of  the  wife  in  those 
of  the  husband  could  include  her  right  to  his  conjugal  affection  and 
society.  Although  all  other  debts  and  rights  to  her  might  go  to 
him,  there  yet  remained  this  particular  debt  fr(jm  him  to  her  abso- 
lutely alone  and  beyond  the  reach  of  the  law  of  merger.  So  long  as 
she  on  her  part  kept  the  marriage  contract  no  interest  in  this  right 
can  be  taken  from  her;  the  husband  cannot  acquire  any  interest  in 
it;  she  cannot  transfer  any. 

Of  legal  necessity,  therefore,  damages  for  injury  to  this  right  must 
be  to  her  solely.  If  the  law  should  permit  the  husband  to  share 
therein,  it  would  be  to  the  extent  of  such  share  to  deny  justice.  This 
the  law  may  not  do.  Moreover,  even  if  it  be  so  that  upon  the  re- 
covery of  damages  by  the  wife  for  this  injury  to  her  sole  right,  the  law 
would  give  to  the  husband  the  custody  thereof  as  her  trustee,  that 
would  not  be  a  sufficient  answer  to  the  action  in  its  present  form. 

It  is  the  contention  of  the  defendant  that  the  admission  by  the 
plaintiff,  that  shte  and  her  husband  are  still  living  together,  is  an 
admission  that  she  now  has  and  enjoys  all  that  the  marriage  contract 
can,  or  intended  to,  secure  to  her;  and  that  she  has  neither  in  law 
nor  in  fact  suffered  any  injury.  But  this  admission  is  to  be  con- 
sidered in  the  light  of  that  made  by  the  defendant,  namely,  that  she 
has  during  the  last  fifteen  years  lived  in  continual  adulterous  inter- 
course with  the  husband  —  an  intercourse  procured  by  her  influence 
over  him.  Upon  this  admission  it  becomes  certain  that  whatever 
may  have  been  the  measure  or  quality  of  the  remnant  of  conjugal 
affection  and  society  permitted  to  the  plaintiff  by  the  defendant,  as  a 
matter  of  fact,  and  of  law  as  well,  the  plaintiff  has  been  deprived  of 
the  conjugal  affection  and  society  which  the  marriage  contract 
entitled  her  to  enjoy  and  required  her  husband  to  give;  and  that  a 
valuable  right,  absolutely  sole  in  her  and  incapable  of  division,  has 
been  injured. 

It  is  not  a  prerequisite  to  the  right  of  the  plaintiff  to  maintain  this 
suit  in  her  own  name  that  she  should  have  been  abandoned  by  her 
husband  in  the  literal  sense,  nor  that  she  should  have  actually  sepa- 
rated herself  from  him  by  or  without  a  decree  of  divorce.  If  she 
has  suffered  the  wrong  complained  of  her  right  to  redress  is  abso- 
lute; it  can  not  be  made  to  depend  upon  any  of  these  conditions. 
As  long  as  she  keeps  her  marriage  contract,  so  long  she  has  the 
right  to  the  conjugal  society  and  affection  of  her  husband.  Possibly 
she  may  regain  these.  This  possibility  is  her  valuable  right.  The 
defendant  may  not  demand  that  she  shall  sacrifice  it  for  the  future 
as  the  price  of  redress  for  injuries  in  the  past.      Upon  the  pleadings 


TORTS   TO   THE    HUSBAND    IN    MARITAL    RELATION.       223 

there  is  a  valuable  right  in  the  wife  solely,  and  an  injury  thereto  for 
which  damages  must  be  given  to  her  solely,  notwithstanding  the  fact 
that  she  is  living  with  her  husband;  therefore,  the  law  cannot  refuse 
its  assistance.  The  rules  of  law  which  the  defendant  invokes  for 
her  protection  are  not  applicable  to  the  case.  The  Superior  Court 
is  advised  that  the  complaint  is  sufficient  and  that  the  plea  in  abate- 
ment is  insufficient. 

In  this  opinion  all  the  other  judges  concurred.' 


BIGAOUETTE  v.   PAULET. 

134  Mass.  123. —  1883. 

Tort  in  four  counts.  The  first  count  was  for  seduction  of  the  plain- 
tiff's wife;  the  second  and  fourth  were  for  assault  upon  her;  and  the 
third  was  for  a  rape:  whereby  the  plaintiff  lost  her  comfort,  assist- 
ance, society  and  benefit. 

The  judge  below  ruled  that,  as  there  was  no  evidence  to  support 
the  count  charging  the  defendant  with  seducing  the  plaintiff's  wife, 
and  as  the  evidence  applicable  to  the  counts  for  assault  and  rape 
proved  that  no  loss  of  service  was  caused  to  the  plaintiff,  the  action 
could  not  be  maintained;  and  directed  a  verdict  for  the  defendant. 
The  plaintiff  alleged  exceptions. 

W!  Allen,  J.  The  plaintiff  cannot  maintain  this  action  for  an 
injury  to  the  wife  only;  he  must  prove  that  some  right  of  his  own  in 
the  person  or  conduct  of  his  wife  has  been  violated.  A  husband  is 
not  the  master  of  his  wife,  and  can  maintain  no  action  for  the 
loss  of  her  services  as  his  servant.  His  interest  is  expressed  by 
the  word  consortium  —  the  right  to  the  conjugal  fellowship  of  the  wife, 

'"Our  statute,  years  ago,  gave  the  wife  a  right  to  sue  alone,  and  thus  — 
adopting  the  chancery  doctrine  and  abrogating  that  of  the  common  law  —  broke 
down  the  only  position  upon  which  it  could  with  the  slightest  plausibility  be 
asserted  that  she  could  not  sue  one  who  wrongfully  took  her  husband  from  her, 
since  upon  the  ground  that  she  could  not  sue  alone  was  rested  the  doctrine 
denying  her  a  right  to  sue  one  who  enticed  away  her  husband.  It  was  never 
asserted  by  the  better  considered  cases  nor  by  the  abler  text-writers  that  she  did 
not  herself  possess  the  substantive  right  upon  which  the  cause  of  action  was 
founded."  —  Elliott,  C.  J.,  in  Haynesv.  Nowlin,  129  Ind.,  581,  584.  Accord, 
that  action  will  lie,  Wolf  v.  Frank,  92  Md.  138. 

Contra,  Hodge  v.  Wetzler,  69  N.  J.  L.  490,  and  the  Me.,  Wis.,  Mo.,  Fed.  and 
Ont.  cases  cited  therein. 


224 


HUSBAND    AND    WIFE. 


to  her  company,  cooperation  and  aid  in  every  conjugal  relation. 
Some  acts  of  a  stranger  to  a  wife  are  of  themselves  invasions  of  the 
husband's  right,  and  necessarily  injurious  to  him;  others  may  or 
may  not  injure  him,  according  t(^  their  consequences,  and  in  such 
cases  the  injurious  consequences  must  be  proved,  and  it  must  be 
shown  that  the  husband  actually  lost  the  company  and  assistance  of 
the  wife.  This  is  illustrated  in  the  statement  of  injuries  to  a  hus- 
band in  3  Bl.  Com.  139,  140,  where  such  injuries  are  said  to  be  prin- 
cipally three:  "  Abduction,  or  taking  away  a  man's  wife;  adultery, 
or  criminal  conversation  with  her;  and  beating  or  otherwise  abusing 
her."  The  first  two  are  of  themselves  wrongs  to  the  husband,  and 
his  remedy  is  by  action  of  trespass  vi  et  armis.  In  regard  to  the 
others,  the  author's  words  are,  "  If  it  be  a  common  assault,  battery 
or  imprisonment,  the  law  gives  the  usual  remedy  to  recover  dam- 
ages, by  action  of  trespass  vi  et  armis ^  which  must  be  brought  in  the 
names  of  the  husband  and  wife  jointly;  but  if  the  beating  or  other 
maltreatment  be  very  enormous,  so  that  thereby  the  husband  is 
deprived  for  any  time  of  the  company  and  assistance  of  the  wife, 
the  law  then  gives  him  a  separate  remedy  by  an  action  of  trespass, 
in  nature  of  an  action  upon  the  case,  for  this  ill-usage,  per  quod 
consortium  amisit;  in  which  he  shall  recover  a  satisfaction  in  dam- 
ages." He  states,  as  one  of  the  circumstances  affecting  the  damages 
in  an  action  for  adultery,  "the  seduction  or  otherwise  of  the  wife, 
founded  on  her  previous  behavior  and  character." 

It  is  usual  in  actions  for  criminal  conversation  to  allege  the  seduc- 
tion of  the  wife,  and  the  consequent  alienation  of  her  affections,  and 
loss  of  her  company  and  assistance,  and  sometimes  of  her  services ;  but 
these  are  matters  of  aggravation,  except  so  far  as  they  are  the  state- 
ment of  a  legal  inference  from  the  fact  itself,  and  actual  proof  of 
them  is  not  necessary  to  the  husband's  right  of  action.  The  loss  of 
the  consortium  is  presumed,  although  the  wife  may  have  herself  been 
the  seducer,  or  may  not  have  been  living  with  the  husband.  A  hus- 
band who  is  living  apart  from  his  wife,  if  he  has  not  renounced  his 
marital  rights,  can  maintain  the  action,  and  it  is  not  necessary  for 
him  to  prove  alienation  of  the  wife's  affection,  or  actual  loss  of 
her  society  and  assistance.  See  Chambers  v.  Caulfield,  6  East,  244; 
IVi/ton  V.  Webster,  7  C.  &  P.  198;  Yundt  v.  Hartrunft,  41  111.  9. 
The  essential  injury  to  the  husband  consists  in  the  defilement  of 
the  marriage  bed, —  in  the  invasion  of  his  exclusive  right  to  marital 
intercourse  with  his  wife,  and  to  beget  his  own  children.  This 
presumes  the  loss  of  the  consortium  with  his  wife,  of  comfort  in  her 
society  in  that  respect  in  which  his  right  is  peculiar  and  exclusive. 
Although  actions  of  this  nature  have  generally  been  brought  where 


TORTS    TO   THE    HUSBAND    IN    MARITAL    RELATION.       22$ 

the  alienation  of  the  wife's  affections,  and  actual  deprivation  of  her 
society  and  assistance,  have  been  the  prominent  injury  to  the  hus- 
band, yet  it  is  plain  that  the  seduction  of  the  wife,  inducing  her  to 
violate  her  conjugal  duties,  and  the  injuries  arising  from  that,  are 
not  the  foundation  of  the  action.  The  original  and  approved  form 
of  action  is  trespass  vi  et  armis,  and,  though  this  form  was  adopted 
when  the  act  was  with  the  consent  of  the  wife,  it  was  for  the  reason, 
as  given  by  Chief  Justice  Holt,  that  "  the  law  indulges  the  husband 
with  an  action  of  assault  and  battery  for  the  injury  done  to  him, 
though  it  be  with  the  consent  of  his  wife,  because  the  law  will  not 
allow  her  a  consent  in  such  case  to  the  prejudice  of  her  husband, 
because  of  the  interest  he  has  in  her."  Rigaut  v.  Gallisard,  7  Mod. 
78;  2  Ld.  Rayra.  809;  Holt,  50.  See,  also,  Bac.  Ab.  Trespass,  C. 
i;  and  Marriage,  F.  2 ;  2  Chit.  PI.  13th  Am.  ed.  855.  Reeves'  Dom. 
Rel.  63.  The  fact  that  trespass,  and  not  case,  was  the  form  of  action, 
even  when  the  wrong  was  accomplished  by  the  seduction  of  the  wife, 
for  the  reason  that  the  wife  was  deemed  incapable  of  consent,  and 
"force  and  violence  were  supposed  in  law  to  accompany  this  atrocious 
injury,"  indicates  that  the  cause  of  action  arose  from  acts  com- 
mitted upon  the  person  of  the  wife,  and  not  from  influences  exerted 
upon  her  mind, —  that  the  corrupting  of  the  body,  rather  than  the 
mind  of  the  wife,  was  the  original  and  essential  wrong  to  the 
husband. 

We  think  that  this  action  may  be  maintained  upon  the  evidence 
offered,  not  for  the  actual  loss  of  comfort,  assistance,  society  and 
benefit,  alleged  in  the  second  and  fourth  counts  as  consequences  of 
the  assaults  set  forth  in  them,  but  for  the  loss  of  the  consortiinn 
with  the  wife  which  is  implied  from  criminal  conversation  with  h«r, 
whether  with  or  against  her  will. 

Exceptions  sustained. 


KROESSIN  V.   KELLER. 
60  Minn.  372. —  1895. 

Collins,  J.  This  is  an  action  brought  by  a  married  woman 
against  one  of  her  own  sex  to  recover  damages,  following,  m  a  gen- 
eral way,'  the  common-law  form  of  declarations  in  crim.  con. 
A  general  demurrer  to  the  complaint  was  overruled  in  the  court  below, 
and  by  this  appeal  we  are  required  to  determine  whether  such  an 
action  can  be  maintained;  the  right  to  recover  being  based  solely  on 
alleged  adulterous  acts  between  plaintiff's  husband  and  the  defend- 
ant. It  is  to  be  noticed  here  that  it  is  not  alleged  that  the  defend- 
ant was  the  ser'ncer  '^f  the  husband,  or  that  the  plaintiff  has  been 
[Domestic  Relations —  15.] 


226  HUSBAND    AND    WIFE. 

deprived  of  his  support;  nor  is  it  an  action  for  enticing  the  iuisband 
away,  or  for  inducing  him  to  abandon  or  desert  his  wife.  We  are 
quite  safe  in  sa\'ing  that  at  common  law  no  such  action  could  have 
been  maintained.  The  injured  husband  alone  brought  crim.  con., 
and  he  could  sustain  the  action  by  simply  showing  adulterous  inter- 
course. The  grounds  on  which  the  right  to  recover  was  based  are 
well  stated  in  Cooley  on  Torts,  224,  and  the  principal  elements  were 
the  disgrace  which  attached  to  the  plaintiff  as  the  husband  of  the 
unfaithful  wife, —  and  no  such  disgrace  has  ever  rested  upon  the  wife, 
if  there  was  one,  of  the  guilty  defendant, —  and,  of  more  importance, 
the  danger  that  a  wife's  infidelity  might  not  only  impose  on  her  hus- 
band the  support  of  children  not  his  own,  but,  still  worse,  cast 
discredit  upon  the  legitimacy  of  those  really  begotten  by  him.  Be- 
cause of  these  elements,  the  man  was  always  conclusively  presumed 
to  be  the  guilty  party.  In  the  eye  of  the  law  the  female  could  not 
even  give  her  consent  to  the  adulterous  acts,  and,  as  a  result,  it  was 
no  defence  in  this  form  of  action  that  the  defendant  had  been 
enticed  into  criminal  conversation  through  the  acts  and  practices  of 
the  woman.  From  this  statement  as  to  the  grounds  or  elements 
constituting  this  action,  it  will  be  seen  that  the  principal  ones  can- 
jot  possibly  exist  or  be  involved  in  a  similar  action  brought  by  a 
wife.  And  what  has  been  said  about  the  unavailability  of  the 
defence  that  the  defendant  himself  was  the  victim,  and  not  the 
seducer,  is  suggestive  of  what  the  courts  might  have  to  hold  to  be 
the  rule  of  pleading,  and  what  they  might  have  to  inquire  into  upon 
the  trial  of  an  action  of  this  kind.  Would  it  be  held,  following  the 
old  rule  we  have  mentioned,  and  for  which  the  reason  seems 
well  founded,  that  it  was  no  defence  for  the  female  sued  to  allege 
and  prove  that  she  was  the  party  seduced,  and  that  the  greater 
wrong  and  injury  had  been  inflicted  upon  her,  not  upon  the  plaintiff 
wife?  or  would  the  contrary  rule  prevail?  But  we  need  not  consider 
the  subject  further,  for  a  moment's  reflection  will  suggest  the 
remarkable  results  flowing  from  the  adoption  of  either  rule. 

We  have  been  cited  to  quite  a  number  of  cases  determined  in  the 
courts  of  last  resort  in  this  country,  in  which  it  has  been  held,  with- 
out much  stress  being  laid  on  statutes  concerning  the  rights  of  mar- 
ried women,  that  an  action  may  be  maintained  by  a  wife  against  one 
who  wrongfully  induces  and  procures  her  husband  to  abandon  and 
send  her  away.  Westlake  v.  Westlake,  34  Ohio  St.  621,  the  court 
being  divided  in  opinion,  is  a  leading  case  on  this  view  of  the  sub- 
ject. A  later  one,  announcing  th^  same  doctrine,  but  made  to  rest 
much  more  on  the  married  woman's  acts  in  the  state  of  Michigan, 
and  similar  to  our  own,  is  Warren  v.  Warren,  89  Mich.  123,  50  N.  W. 


TORTS   TO    THE    HUSBAND    IN    MARITAL    RELATION.        227 

842.  The  plaintiff's  counsel  has  been  industrious  in  collecting 
this  class  of  cases  in  his  brief,  and  to  them  we  add  Price  v.  Price 
(Iowa),  60  N.  W.  202.  But  even  on  this  proposition,  and  despite 
broad  statutory  enactments  affecting  the  rights  of  married  women,  the 
courts  are  not  entirely  agreed,  for  in  Maine  and  Wisconsin  it  has  been 
held  that  such  an  action  cannot  be  maintained.  Doc  v.  RiH\  82  Me. 
503,  20  Atl.  83;  Duffies  y.  Duffies,  76  Wis.  374,  45  X.  ^^^  522.  But 
we  need  not  decide  as  between  these  cases,  for  the  exact  question 
raised  by  the  demurrer  here  was  not  the  one  under  consideration  in 
any  we  have  cited.  They  were  brought  for  enticing  away  the  hus- 
band; causing  him  to  withdraw  his  support  from  the  wife;  to  aban- 
don or  desert  her,  —  an  entirely  distinct  and  separate  cause  of  action 
from  that  set  out  in  the  plaintiff's  complaint.  At  common  law  this 
form  of  action  was  wholly  different  in  pleadings  and  proof,  as  well  as 
parties,  from  crim.  con.  It  proceeded,  and  still  proceeds,  upon 
different  grounds,  and  we  do  not  regard  cases  of  that  nature  as 
authority  in  this.  We  are  not  unmindful  of  the  fact  that  plaintiff's 
counsel  has  presented  two  cases  —  Seavery.  Anams  (N.  H.),  19  Atl. 
776,  and  JIaynes\.  Nozvlin,  129  Ind.  581,  29  N.  E.  389  —  in  which  it 
is  held  that  an  action  by  a  wife  against  another  woman,  based  on  a 
comulaint  very  much  like  this,  will  lie.  But  in  these  cases  the 
authorities  before  referred  to  are  cited  and  relied  on  as  directly  in 
point.  The  courts  rendering  these  decisions  do  not  seem  to  have 
considered  that  there  is,  and  inevitably  must  be,  a  marked  distinc- 
tion between  an  action  charging  a  defendant  with  having  induced 
and  enticed  a  husband  to  withdraw  his  support  from  his  wife  and  to 
abandon  and  desert  her,  and  one  similar  to  crim.  con.  We  think  the 
difference  noticeable  and  material,  although  we  do  not  wish  to  be 
understood  as  holding  that  the  one  first  mentioned  will  lie.  That 
question  is  not  before  us,  and  we  simply  express  our  conviction  that 
a  wife  cannot  maintain  an  action  in  the  nature  of  crim.  con.  Such 
actions  would  "  seem  to  be  better  calculated  to  inflict  pain  upon  inno- 
cent members  of  the  families  of  the  parties  than  to  secure  redress  to 
the  persons  injured."  The  power  to  bring  such  actions  would  fur- 
nish wives  "  with  the  means  of  inflicting  untold  misery  upon  others, 
and  little  hope  of  redress  for  themselves."  We  find  nothing  in  our 
statutes  in  respect  to  the  rights  of  married  women  which  indicates 
that  the  power  to  proceed  in  this  form  of  action  was  intended  to  be 
conferred.  Attention  has  been  called  to  G.  S.  1894,  sec.  5530  (Laws 
1887,  c.  207,  §  i).  We  have  heretofore  had  occasion  to  comment 
upon  that  act,  and  have  not  changed  our  views  as  then  expressed. 
Althen  v.  Tarhox,  48  Minn.  18,  50  N.  W.  1018. 
Order  reversed.* 

'  For  distinction  between   alienation   of  affections  and  criminal  conversation, 
•ee  Hollister  v.   Valentnic,  69  App.  [)iv.  (N.  Y.)  582. 


228  HUSBAND   AND    WIFE. 

GOLDMAN  V.  COHEN. 
30  Misc.  336.  —  1900. 

(Supreme  Court,  New  York,  Special  Term.) 

Russell,  J.  The  defendant  demurs  to  the  complaint,  which  seeks 
recovery  by  a  wife  for  the  loss  she  sustained  as  a  wife  by  the  injury 
to  her  husband  from  the  negligence  of  the  defendant  in  the  manage- 
ment of  a  horse.  Her  loss  is  that  which  usually  occurs  to  a  wife 
from  the  illness  of  a  husband  in  the  deprivation  of  support  and  con- 
sortium, and  the  need  of  her  personal  care  for  him  during  his 
sickness.  No  case  is  cited  where  the  wife  recovered  upon  such  a 
claim;  and  the  absence  of  precedent  where  such  demands  might 
have  been  numerous,  if  sustained  by  the  law,  goes  far  to  the  belief 
that  such  negligence  has  never  yet  been  embraced  within  the  circle 
of  causes  of  action,  recognized  by  law,  beyond  the  right  given  to 
the  injured  one,  and  its  survival  to  the  consort  and  next  of  kin  in 
the  event  of  his  death. 

It  is  true  that  this  century  just  closing  has  seen,  with  our  own 
State  foremost  in  the  advance,  the  adoption  by  unwritten  and 
statutory  law  of  juster  and  wider  views  of  the  wife's  existence  as 
a  human  being,  by  the  emancipation  of  her  person  from  "the 
moderate  chastisement"  of  the  husband,  and  the  protection  of  her 
rights  of  property;  but  her  interest  in  the  husband's  life  and  com- 
panionship is  not  a  right  of  property,  or  derived  from  a  contract 
of  bargain  and  sale.  That  interest  lies  in  a  region  into  which  the 
law  does  not  enter  except  when  necessity  compels. 

It  does  recognize  invasion  by  willful  misconduct.  It  inflicts  heavy 
damages  upon  the  enticer  or  seducer.  But  this  is  for  punishment 
and  atonement  rather  than  compensation.  It  comes  within  the 
range  of  concurrent  and  supplementary  adjuncts  to  the  criminal 
law  for  the  prevention  and  redress  of  wrongs. 

The  fault  of  negligence  rarely  demands  a  greater  remedy  than 
mere  compensation.  The  right  of  action  is  remedial,  —  not  puni- 
tive. It  reaches  not  out  to  those  indirectly  suffering  by  impairment 
of  domestic  relations,  to  give  to  dependent  wife  or  child  pecuniary 
equivalent.  So  far  as  the  law  can,  it  neutralizes  such  indirect  losses 
by  compensation  to  the  husband  and  father,  thus  giving  him  the 
means  of  supplying  the  loss  in  earning  power  and  expenses  of  sick- 
ness, and  so  avoids  double  or  triple  recoveries  for  the  same  elements 
of  compensatory  damages  by  different  persons  against  him  whose 
fault  only  gives  ground  for  one  restitution.     The  breach  of  a  con- 


TORTS   TO   THE    HUSBAND    IN    MARITAL   RELATION.         229 

tract  obligation  directly  affects  the  power  of  the  husband  to  give 
solace  and  comfort  to  the  wife;  but  she  may  not  have  a  personal 
right  of  action  except  where  the  law  does  allow  her  to  be  the  mov- 
ing cause  to  invoke  the  courts  to  punish  destruction  of  marital 
rigiits. 
Judgment  for  defendant,  on  demurrer,  with  costs. 


230  HUSBAND   AND    WIFE. 

Crimes  by  the    Wife. 
THE  STATE  v.  MA  FOO. 

I  lo  Mo.  8. —  1891. 

Defendant  was  indicted  under  the  name  of  Annie  Baker.  Under 
this  name  she  prayed  a  change  of  venue,  and,  upon  it  being  granted, 
she  signed  bond  for  appearance  in  Franklin  Circuit  Court.  In  the 
Franklin  court  she  alleged  her  true  name  was  Annie  Ma  Foo,  and  the 
proceedings  were  afterwards  conducted  accordingly. 

She  was  indicted  at  the  January  term,  189T,  of  St.  Louis  Criminal 
Court,  for  mayhem  under  section  3488.  The  indictment  was  in 
three  counts,  the  first  two  for  mayhem  differing  only  in  the  corrosive 
fluid  used,  and  the  third  charged  a  felonious  assault.  At  the 
close  of  the  testimony  the  state  entered  a  nolle  prosequi  as  to  the 
third  count,  and  appellant  was  convicted  upon  the  second,  her  pun- 
ishment being  assessed  at  five  years'  imprisonment  in  the  peni- 
tentiary. 

After  unsuccessful  motions  for  new  trial,  and  in  arrest,  she  was 
duly  sentenced  in  accordance  with  the  verdict,  and  from  this  judg- 
ment she  appealed. 

Gantt,  p.  J.  *  *  *  But  the  defendant  earnestly  contends 
that  the  court  erred  in  not  qualifying  the  seventh  instruction  by 
adding  thereto  these  words:  "There  was  no  evidence  that  the 
defendant's  husband  disapproved  of  the  acts  of  defendant,  and, 
unless  that  fact  is  established,  the  jury  should  acquit  the  defend- 
ant." And  in  refusing  instruction,  numbered  5,  prayed  in  her 
behalf  to  the  effect  that  if  her  husband  was  present  the  jury  must 
acquit  her. 

The  court  gave  the  following  declaration:  "7.  The  court  instructs 
the  jury  that  the  evidence  in  this  case  is  sufficient  to  show  that  the 
defendant,  at  the  time  of  the  alleged  commission  of  the  crime,  was  a 
married  woman,  and  the  wife  of  Ma  Foo.  Now,  even  though  you 
may  believe,  from  the  evidence,  that  the  defendant  committed  the 
crime  as  charged  in  the  indictment,  yet,  if  you  further  believe  that 
she  committed  the  crime  in  the  presence  of  her  husband.  Ma  Foo, 
and  that  he  was  present  at  the  time  when  she  threw  the  fluid,  then 
the  law,  in  the  absence  of  other  and  further  culpatory  and  explana- 
tory evidence  against  the  defendant  herself,  presumes  that  she  acted 
under  the  immediate  coercion  of  her  husband,  and,  in  such  case, 
you  will  find  the  defendant  not  guilty.  This  presumption  of  law, 
however,  that  a  wife  acting  in  the  presence  of  her  husband  is  acting 


CRIMES   BY   THE    WIFE.  23 1 

under  his  coercion,  and  that  she  is,  therefore,  not  guilty  of  a  crime 
committed  in  his  presence,  is  prima  facie  only,  and  may  be  rebut- 
ted by  other  proper  evidence  in  the  case.  And  if,  in  this  case,  you 
believe  from  all  the  testimony  before  you  that  the  defendant  was 
the  sole  acting  party,  and  committed  the  crime  as  charged  without 
any  incitement  on  the  part  of  her  husband,  and  without  his  consent, 
or  that  the  defendant  was  the  sole  instigator  of  the  crime,  and  com- 
mitted the  same  as  charged  in  the  indictment,  then  you  will  find 
the  defendant  guilty,  even  though  you  may  believe  that  her  husband 
was  present  when  she  committed  the  act." 

A  married  woman's  responsibility  for  crime,  committed  in  the 
presence  of  her  husband,  is  variously  stated  by  the  text-writers. 

Blackstone,  in  his  Commentaries,  book  i,  page  444,  says:  "  And 
in  some  felonies,  and  in  some  inferior  offences  committed  by  her 
through  constraint  of  her  husband,  the  law  excuses  her;  but  this 
extends  not  to  treason  or  murder."  And  in  his  fourth  book  he 
says:  "  And  she  will  be  guilty  in  the  same  manner  of  all  those  crimes 
which,  like  murder,  are  mala  in  se,  and  prohibited  by  the  law  of 
nature."     See,  also,  Russell  on  Crimes  [9th  ed.],  p.  34. 

From  a  close  examination  and  comparison  of  the  cases  and  the 
text-writers,  the  general  rule  admitted  by  all  seems  to  be,  that  if  a 
wife  commit  any  felony,  with  the  exception  of  murder  and  treason, 
and  perhaps  some  other  heinous  felonies,  in  the  presence  of  her  hus- 
band, it  is  presumed,  in  the  absence  of  evidence  to  the  contrary, 
that  she  did  it  under  constraint  by  him,  and  is,  therefore,  excused. 
I  Bennett's  Leading  Criminal  Cases,  81;  Commonwealth  v.  Neal^  10 
Mass.  152;  I  Bishop's  Criminal  Law,  452;  State  v.  Williams,  65 
N.  C.  398- 

But  the  authorities  are  equally  agreed  that  this  presumption  is 
only  prima  facie,  and  rebuttable.  So  it  is  said  in  Russell  on  Crimes, 
pages  32,  33,  "  But  this  is  only  a  presumption  of  law,  so  that  if, 
upon  the  evidence,  it  clearly  appear  that  the  wife  was  not  drawn  to 
the  offence  by  her  husband,  but  that  she  was  the  principle  inciter  of 
it,  she  is  guilty."  "  And  if  she  commit  a  theft  of  her  own  voluntary 
act,  or  by  the  bare  command  of  her  husband,  or  be  guilty  of  murder, 
treason  or  robbery  in  company  with,  or  by  coercion  of,  her  husband, 
she  is  punishable  as  if  she  were  sole."  And  this  is  the  doctrine  of 
all  the  states  in  the  United  States,  i  Wharton  on  Criminal  Law, 
sec.  79;  Seller  v.  People,  77  N.  Y.  411;  Tabler  v.  State,  34  Ohio  St. 
127;  UhV s  case,  6  Gratt.  706;  State  v.  Williams,  65  N.  C.  398;  Miller 
V.  State,  25  Wis.  384. 

In  Arkansas,  by  force  of  a  statute,  the  presence  of  the  husband 
merely  is  no  defence  to  the  wife,  unless  it  "  appear  from  the  circum- 


232  HUSBAND   AND    WIFE. 

Stances  in  the  case  that  violence,  threats,  commands  or  coercion 
were  used."     Freel  v.  State ^  21  Ark.  212. 

It  will  be  observed  that  learned  counsel  for  defendant  desire  us  to 
ingraft  an  additional  modification  on  this  rule  of  evidence,  and  re- 
quire the  state  to  go  further,  and  prove  that  the  husband  not  only 
was  not  the  inciter  or  responsible  criminal  agent  in  the  commission 
of  the  crime,  but  that  he  actually  disapproved  it,  and,  in  the 
absence  of  evidence  of  his  disapproval,  the  wife  must  be  acquitted. 
This  is  not  the  law.  There  is  little  in  the  present  organization  of 
society  upon  which  xht  prima  facie  presumption  itself  can  stand,  and 
certainly  nothing  calling  for  any  extension  of  the  presumption. 

The  statutory  rule  in  Arkansas,  supra,  is  more  in  accord  with  the 
spirit  of  the  age  in  which  we  live.  In  New  York,  by  the  Penal  Code 
of  1881,  sees.  17  and  24,  the  presumption  is  entirely    abolished. 

In  this  case,  if  the  wife  is  guilty  at  all,  she,  alone,  committed  the 
criminal  act,  which  forever  deprived  the  boy  of  his  eyesight.  By 
her  own  evidence  she  exonerates  her  husband  of  all  complicity  in 
the  crime.  There  is  not  a  semblance  of  constraint.  Her  responsi- 
bility was  fairly  submitted  to  the  jury.  The  instruction  gave  her 
the  full  benefit  of  the  presumption,  and  the  jury  must  have  found 
that  she  was  neither  coerced  nor  constrained  by  act,  deed  or  word  of 
her  husband  to  do  what  she  did,  but  that  she  acted  from  her  own 
free  will.  Had  the  act  resulted  in  death,  under  the  common-law 
authorities  she  would  not  have  been  entitled  to  the  benefit  of  the 
presumption  of  constraint. 

What  difference  there  is  in  the  principle  between  the  culpability 
of  one  who,  on  purpose  and  of  malice  aforethought,  destroys  the 
sight  of  a  little  child,  and  one  who  kills,  we  leave  to  others  to 
state.  We  confess  we  are  unable  to  formulate  any.  The  defendant 
has  been  fairly  tried,  and  the  jury  have  convicted  her.  This  was 
their  peculiar  province.  We  can  but  regret  for  the  sake  of  humanity 
that  she  could  not  have  been  shown  innocent  of  the  charge.  At  this 
distance,  it  is  hard  to  conceive  of  such  a  crime  by  a  woman,  and 
that  woman  a  mother,  with  so  little  provocation  or  motive. 

The  remarks  of  Mr.  Harvey  did  not  transcend  the  bounds  of 
legitimate  argument.  He  expressly  subordinated  his  own  views  of 
the  law  to  those  expressed  by  the  court  in  its  instructions. 

Finding  no  error  in  the  record,  the  judgment  is  affirmed.  All 
concur.' 


'  See  Commonwealth  v.  Daley,  148  Mass.  11,  as  to  violation  of  the  excise  law,  by 
:he  wife,  "  in  the  presence  of"  the  husband. 


CRIMES   AS   BETWEEN   HUSBAND   AND   WIFE.  233 

Crimes  as  Between  Husband  and  Wife, 

THE  STATE  v.   BANKS. 

48  Ind.  197. —  1874. 

BusKiRK,  C.  J.  The  appellee  was  indicted  in  the  court  below 
for  grand  larceny.  The  indictment  charged  that  the  defendant,  on 
the  loth  day  of  October,  187 1,  unlawfully  and  feloniously  did  steal, 
take,  and  drive  away  two  horses,  one  mare,  one  colt,  one  wagon,  one 
set  of  harness,  and  one  grindstone,  the  personal  goods  of  John  Hen- 
sicker. 

The  issue  formed  upon  the  plea  of  not  guilty  was  submitted  to  a 
jury  for  trial,  which  resulted  in  a  verdict  of  not  guilty. 

The  court  instructed  the  jury  as  follows:  "  It  appearing,  from  all 
the  evidence  in  the  case,  that  the  goods  were  taken  by  the  defend- 
ant with  the  consent  of  the  owner's  wife,  under  an  agreement  with 
her  that  he  was  to  dispose  of  the  same  and  account  for  the  proceeds 
to  her,  and  there  being  no  evidence  tending  to  show  that  there  was 
any  adulterous  intercourse,  actual  or  contemplated,  between  the 
defendant  and  said  wife,  you  will  return  a  verdict  of  not  guilty.  To 
the  giving  of  this  instruction,  the  State,  by  her  prosecuting  attor- 
ney, excepted,  and  now  prosecutes  this  appeal,  to  obtain  the 
opinion  of  this  court  as  to  whether  the  instruction  was  correct. 

It  is  insisted  by  the  counsel  for  the  State  that  the  instruction  was 
erroneous,  upon  two  grounds: 

1.  That  it  misdirected  the  jury  as  to  the  law  applicable  to  the  case. 

2.  That,  conceding  the  instruction  properly  expressed  the  law, 
the  court  erred  in  giving  it,  because  it  usurped  the  functions  of  the 
jury. 

In  Hawk,  P.  C,  lib.  i,  chap.  33,  sec.  32,  the  law  is  stated  thus: 
"  It  is  certain  that  a  feme  covert  may  be  guilty  thereof  by  stealing 
the  goods  of  a  stranger,  but  not  by  stealing  her  husband's,  because 
a  husband  and  wife  are  considered  but  as  one  person  in  law;  and 
the  husband,  by  endowing  his  wife  at  the  marriage  with  all  his  worldly 
goods,  gives  her  a  kind  of  interest  in  them;  for  which  cause  even  a 
stranger  cannot  commit  larceny  in  taking  the  goods  of  the  husband 
by  the  delivery  of  his  wife,  as  he  may  by  taking  away  the  wife  by 
force  and  against  her  will  together  with  the  goods  of  the  husband." 
In  Regina  v.  Featherstone,  Dearsly,  369;  s.  c.  6  Cox,  C.  C.  376,  and 
2  Ben.  &  H.  Leading  Cases,  362,  Lord  Campbell  said:  "  The  gen- 
eral rule  of  law  is,  that  a  wife  cannot  be  found  guilty  of  larceny  for 
stealing  the  goods  of  her  husband,  and   that  is  upon  the  principle 


234  HUSBAND    AND    WIFE. 

that  the  husband  and  wife  are,  in  the  eye  of  the  law,  one  person; 
but  this  rule  is  properly  and  reasonably  qualified  when  she  becomes 
an  adulteress.  She  thereby  determines  her  quality  of  wife,  and  her 
property  in  her  husband's  goods  ceases." 

We  have  made  a  careful  examination  of  the  authorities,  and  they 
very  clearly  establish  the  following  propositions: 

1.  The  wife  cannot  be  guilty  of  stealing  the  goods  of  her  husband, 
she  residing  with  him  and  having  the  possession  of  the  goods  by 
virtue  of  the  marriage  relation. 

2.  When  adultery  is  neither  committed  nor  intended,  a  person  is 
not  guilty  of  larceny  in  aiding  a  wife  in  taking  away  her  husband's 
goods. 

3.  Where  adultery  has  been  committed  or  intended,  the  adulterer 
may  be  convicted  of  receiving  the  goods  of  the  husband  from  the 
wife,  or  in  aiding  the  wife  in  carrying  away  the  goods  of  the  hus- 
band. 

4.  Where  an  adulterer  takes  goods  jointly  with  the  wife,  he  may  be 
guilty  of  larceny. 

5.  Where  the  wife  alone  takes  property  of  the  husband  to  her  adul- 
terer's lodgings,  he  cannot  be  convicted  on  mere  evidence  that  the 
property  is  in  his  lodgings. 

6.  An  adulterer  is  not  guilty  of  larceny  if  he  merely  assist  the 
adulteress  in  carrying  away  her  necessary  wearing  apparel. 

It  is  not  necessary  for  us  to  lay  down  as  law  that,  supposing  a 
stranger  stole  the  goods  of  the  husband,  and  the  wife  was  privy  to 
it  and  consenting,  such  privity  and  consent  would,  if  there  was  ani- 
mus fur  andi  in  the  stranger,  exonerate  him  from  what  would  other- 
wise be  larceny.  Nor  do  we  express  any  opinion  as  to  whether  a 
wife,  who  has  become  an  adulteress,  and  carries  away  the  goods  of 
her  husband  or  assists  her  paramour  in  carrying  away  the  goods  of 
the  husband,  may  not  be  convicted  of  larceny.  See  2  Bishop,  Crim. 
Law,  sees.  873,  874;  Whart.  Crim.  Law,  sees.  1803  to  1806;  and 
2  Ben.  &  H.  Lead.  Cases,  358  to  370,  where  the  leading  English  and 
American  cases  are  cited  and  reviewed. 

We  think  the  instruction  was  correct  as  matter  of  law.  Besides, 
the  appellee  was  the  brother  of  the  wife,  and  the  entire  transaction 
shows  that  there  was  no  felonious  purpose  at  the  time  the  property 
was  taken  away. 

A  court  in  charging  a  jury  has  no  right  to  assume  the  guilt  of  the 
accused,  or  that  a  fact  has  or  has  not  been  proved,  or  to  express  any 
opinion  or  manifest  a  leaning  upon  evidence  which  should  be  sub- 
mitted to  the  jury;  but  when  there  is  no  evidence,  or  none  upon 
a  particular  point,  upon   which  a  conviction  could    be    based,    the 


HUSBAND  OR  WIFE  TESTIFY  FOR  OR  AGAINST  EACH  OTHER.    235 

court  has  a  right  to  say  so,  and  direct  the  jury  to  find  the  de- 
fiendant  not  guilty.     This  was  such  a  case. 

The  court  committed  no  error  in  giving  the  instruction  com- 
plained of. 

The  judgment  is  affirmed.' 


Capacity  of  the  Husba7id  or  Wife  to  Testify  for  or  Against 

Each  Other. 

COMMONWEALTH  v.  SAPP. 

90  Ky.  580. —  1890. 

Chief  Justice  Holt.  Upon  the  trial  of  William  Sapp  upon  the 
charge  of  attempting  to  poison  his  wife,  the  state  offered  her  as  a 
witness  against  him,  avowing  by  its  attorney  that  it  would  prove  by 
her  she  had  seen  the  accused  sprinkle  a  substance  upon  a  piece  of 
watermelon  intended  for  her,  and  that  the  portion  of  it  produced  at 
the  examining  trial  and  then  shown  to  contain  arsenic,  was  a  part  of  the 
piece  prepared  for  her,  and  was,  when  so  produced,  in  the  same  condi- 
tion as  when  she  got  it  from  him.  It  is  claimed  the  attempt  was  made 
in  August,  1888.  Afterward,  and  before  his  trial,  they  were  abso- 
lutely divorced.  The  court  refused  to  permit  her  to  testify,  holding 
that  she  could  not  be  a  witness  for  any  purpose;  and  whether  this 
is  so  is  the  main  question  now  presented. 

It  is  a  general  rule  of  the  common  law,  based  upon  public  policy 
and  because  of  identity  of  interest,  that  neither  a  husband  nor  wife 
can  testify  for  or  against  the  other;  and  some  authorities  hold  that 
where  this  relation  has  once  existed,  the  one  is  inadmissible  for  or 
against  the  other,  even  after  the  relation  has  ceased,  as  to  any  and 
all  matters  that  occurred  during  its  existence.  They  follow  Lord 
Alvanley,  who  said,  in  the  early  case  of  Monroe  v.  Twisleton, 
Peake's  Ad.  Cas.,  219,  that  the  divorced  j^ife  is  a  competent  wit- 
ness to  prove  any  fact  arising  after  the  divorce,  but  not  to  prove 
anything  which  happened  during  coverture.  Thus  Mr.  Wharton 
says:  "  If  a  woman  be  divorced  a  vinculo  jnatrimonii,  she  cannot 
prove  a  contract,  or  anything  else  which  happened  during  cover- 
ture. Any  fact  arising  after  the  divorce  she  may  prove."  i  Whar- 
ton's Crim.  Law,  sec.  744. 

It  is,  perhaps,  questionable  whether  some  of  the  writers  to  this 
effect  do  not  mean  that  the  divorced  wife  cannot  testify  as  to  any 

'  .^ee  iilso  People  v.  Cole,  43  N.  Y.  508.  As  to  arson,  see  Snydet  v.  The  People, 
26  Mich.  106, 


23^  HUSBAND   AND    WIFE. 

matter  occurring  during  coverture,  if  her  knowledge  as  to  it  arose 
by  reason  of  the  marital  relation.  It  was  held  in  The  State  v.  Phelps^ 
2  Tyler's  Reports,  374,  that  a  w^oman,  although  divorced  absolutely, 
is  not  a  competent  witness  upon  an  indictment  against  her  former 
husband  for  a  crime  committed  during  the  coverture,  l')ut  the  court 
so  announced  without  any  argument  in  the  opinion  of  the  question. 
Cases  may,  however,  be  found  where  courts  of  high  authority  have 
held  that  a  widow  may  testify  against  the  administrator  of  her  hus- 
band as  to  any  facts  which  she  did  not  learn  from  the  latter,  or 
which  did  not  come  to  her  knowledge  by  reason  of  the  marital  rela- 
tion, although  relating  to  the  transactions  of  her  husband,  i  Green- 
leaf  on  Evidence,  sec.  338;  Babcock  v.  Booth,  2  Hill,  181. 

In  the  case  last  cited  the  court  said:  "  The  policy  of  the  law  only 
excludes  her  when  her  answer  will  be  a  violation  of  the  confidence 
which  existed  between  the  husband  and  wife  while  the  marriage  rela- 
tion continued;"  and  in  Ratcliffew.  Wales,  i  Hill,  63,  which  was  an 
action  for  crim.  con.  with  the  plaintiff's  wife,  it  was  held  that  while 
a  divorced  wife  is  generally  incompetent  to  testify  against  the  hus- 
band as  to  facts  occurring  during  the  marriage,  yet  she  was  com- 
petent to  prove  the  charge  for  him,  although  the  act  occurred  dur- 
ing the  existence  of  the  marriage.  We  fail  to  see  any  reason  for  a 
distinction,  whether  she  be  called  as  a  witness  for  or  against  him. 

It  was  held  by  this  court,  in  Storms,  etc.  v.  Stortns,  etc.,  3  Bush.  77, 
that  the  testimony  of  a  husband,  after  the  wife  has  been  divorced 
from  him,  is  competent  against  her,  if  it  divulges  no  communication, 
between  them  during  coverture.  In  English's  Adni  r  v.  Cropper, 
8  Bush.  292,  the  testimony  of  the  widow  of  the  intestate  was  offered 
by  his  administrator  to  prove  facts  which  came  to  her  knowledge 
during  the  coverture,  but  not  by  reason  of  her  confidential  relation 
as  wife. 

It  was  urged  that  our  then  existing  law  (1871)  provided  that  hus- 
band and  wife  should  not  testify  for  or  against  each  other,  and  that, 
construing  it  by  the  reasons  of  public  policy,  which,  before  its  adop- 
tion, disqualified  them  from  so  testifying,  it  should  be  held  to  ex- 
clude them  after  the  dissolution  of  the  marriage  by  divorce  or  the 
death  of  one  of  them;  but  this  court  said:  "  Neither  the  literal  im- 
port of  the  language  of  the  Code  cited  nor  any  principle  of  policy  or 
propriety  will  exclude  a  surviving  wife  or  husband  from  testifying 
to  facts  known  by  the  witness  from  other  means  of  information  than 
such  as  result  from  the  marriage  relation,  where,  as  in  this  case,  the 
witness  is  not  otherwise  incompetent,  although  the  testimony  may 
relate  to  transactions  of  the  deceased  husband  and  wife." 

Our  statute,  adopted  in  1872,  and  which,  in  substance,  so  far  as  it 


HUSBAND  OR  WIFE  TESTIFY  FOR  OR  AGAINST  EACH  OTHER.    237 

bears  upon  the  question  we  are  now  considering,  is  again  found  in 
sec.  606  of  the  Civil  Code,  appears  to  be  declaratory  of  these 
decisions  of  this  court.  It  says:  "  Neither  husband  nor  wife 
shall  be  competent  for  or  against  each  other,  or  concerning  any 
communication  made  by  one  to  the  other  during  marriage,  whether 
called  while  that  relation  subsisted  or  afterwards,  provided,  however, 
that  in  actions  where  the  wife,  were  she  feme  sole,  would  be  plaintiff 
or  defendant,  the  wife  may  testify  or  her  husband  may  testify,  but 
both  shall  not  be  permitted  to  testify."  General  Statutes,  edition 
1883,  page  414. 

This  provision  was  considered  in  the  case  of  Elswich  v.  The  Com- 
monwealth, 13  Bush.  155,  where  the  husband  was  indicted  for  a  fel- 
ony, but  not  one  against  the  wife,  who  had  been  divorced  before  the 
trial;  and  it  was  decided  that  inasmuch  as  she  had  been  divorced, 
she  was  a  competent  witness  for  him  to  prove  facts  which  came  to  her 
knowledge  while  the  marriage  relation  existed,  but  not  confidentially 
or  by  means  of  her  situation  as  wife.  Unquestionably,  information 
obtained  by  the  husband  or  wife  during  the  marital  relation  by  reason 
of  its  existence  should  not  be  disclosed,  even  after  the  relation  has 
been  dissolved.  Whether  this  rule  may  be  relaxed  so  as  to  permit 
the  wife  to  testify  against  the  husband  by  his  consent  has  been,  to 
some  extent,  a  mooted  point,  but  in  this  country  it  has  generally 
been  denied.  Its  importance  to  the  interests  of  society,  protecting, 
as  it  does,  the  peace  and  harmony  so  vital  to  the  most  intimate  of 
all  relations,  cannot  be  overestimated.  Its  disregard  would  throw 
open  to  the  public  gaze  all  that  privacy  of  married  life  which  tends 
to  cement  the  relation  and  destroy,  in  great  degree,  if  not  altogether, 
that  mutual  confidence  and  dependence,  the  one  upon  the  other,  so 
necessary  to  its  existence.  Discord  and  misery  would  reign  where 
peace  and  concord  are  so  necessary.  In  the  language  of  an  eminent 
legal  writer:  "  The  great  object  of  the  rule  is  to  secure  domes- 
tic happiness  by  placing  the  protecting  seal  of  the  law  upon  all  con- 
fidential communications  between  husband  and  wife;  and  whatever 
has  come  to  the  knowledge  of  either  by  means  of  the  hallowed  con- 
fidence which  that  relation  inspires  cannot  be  afterwards  divulged 
in  testimony,  even  though  the  other  party  be  no  longer  living." 
I  Greenleaf  on  Evidence,  sec.  337. 

If  the  proposed  testimony  violates  marital  confidence  in  the 
slightest  degree,  or  tends,  however  slightly,  to  impair  the  rule  for 
its  protection,  the  highest  considerations  forbid  its  introduction. 
The  word  "  communication,"  therefore,  as  used  in  our  statute, 
should  be  given  a  liberal  construction.  It  should  not  be  confined  to 
a  mere   statement    by   the   husband   to   the  wife   or  vice  versa,   but 


238  HUSBAND   AXU    WIFE. 

should  DC  construed  to  embrace  all  knowledge  upon  the  part  of  the 
one  or  the  other  obtained  by  reason  of  the  marriage  relation,  and 
whicii,  but  for  the  confidence  growing  out  of  it,  would  not  have  been 
known  to  the  party.  The  reason  of  this  rule  does  not  apply,  how- 
ever, to  facts  known  to  a  surviving  or  divorced  husband  or  wife,  in- 
dependent of  the  existence  of  the  former  marriage,  although  the 
knowledge  was  derived  during  its  existence,  and  relates  to  the  trans- 
actions of  the  one  or  the  other;  therefore,  the  rule  should  not  be 
applied  in  such  a  case.  What  the  state  proposed  to  prove  by  the 
divorced  wife  in  this  case  was  not  any  communication  or  knowledge 
which  can  fairly  be  considered  as  having  come  to  her  by  reason  of 
her  being  then  the  wife  of  the  accused.  If  she  had  not  then  been  his 
wife,  ordinary  observation  would  have  enabled  her  to  know  all  that 
it  was  proposed  to  prove  by  her.  But  we  think  it  w^as  competent 
upon  another  ground.  It  was  evidence  relating  to  an  alleged 
attempt  at  felony  upon  the  wife.  The  rule  that  husband  and  wife 
cannot  testify  for  or  against  each  other  is  subject  necessarily  to 
some  exceptions,  one  of  which  is,  where  the  husband  commits  or 
attempts  to  commit  a  crime  against  the  person  of  the  wife.  Stein  v. 
Bcnoman,  etc.,  13  Peters,  221.  It  was  never  doubted  but  what  she 
could  exhibit  articles  of  the  peace  against  him.  Roscoe  says:  "  It 
is  quite  clear  that  a  wife  is  a  competent  witness  against  her  husband 
in  respect  to  any  charge  which  affects  her  liberty  or  person." 
Roscoe's  Criminal  Evidence,  p.  150. 

In  an  English  case,  where  the  husband  attempted  to  poison  the 
wife  with  a  cake  into  which  arsenic  had  been  introduced,  and  the 
wife  was  admitted  to  prove  that  her  husband  gave  her  the  cake,  it 
was  held  by  the  twelve  judges  that  the  evidence  was  rightly  ad- 
mitted.    Hex  v.  y^agger,  Rus.  Crimes,  632. 

In  I  Wharton's  Criminal  Law,  sec.  769,  it  is  said:  "  Where,  how- 
ever, violence  has  been  committed  on  the  person  of  the  wife  by  the 
husband,  she  is  competent  to  prove  such  violence;  "  and  in  the  case 
of  The  State  v.  Hussey,  i  Bush.  123,  the  judge,  in  delivering  the  opin- 
ion, said:  "The  rule,  as  we  gather  it  from  authority  and  reason,  is, 
that  a  wife  may  be  a  witness  against  her  husband  for  felonies  per- 
petrated on  her,  and  we  would  say  for  an  assault  and  battery  which 
inflicted  or  threatened  a  lasting  injury  or  great  bodily  harm." 

In  the  case  of  The  People  v.  Northrup,  50  Barb.  147,  the  husband 
was  on  trial  for  administering  poison  to  the  wife,  and  she  was  ad- 
mitted as  a  competent  witness. 

The  policy  upon  which  the  rule  that  the  husband  and  wife  cannot 
testify  for  or  against  each  other  is  based  is  so  far  overcome  as  to 
create  the  exception  by  that  superior  policy  which  dictates  the  pun- 


HUSBAND  OR  WIFE  TESTIFY  FOR  OR  AGAINST  EACH  OTHER.    239 

ishment  of  crime,  and  which,  without  the  exception  to  the  rule, 
would  very  likely  go  unpunished.  It  is  of  necessity.  If  it  be 
said  that  our  statute  forbids  the  introduction  of  the  husband  or  wife 
as  a  witness  against  the  other,  we  reply,  and  so  did  the  common 
law;  and  yet  the  exception  named  existed,  and  so  it  should,  in  our 
opinion,  under  our  statute.  The  necessity  of  the  case  requires  such 
a  construction,  and,  as  already  said,  the  statute  forbidding  husband 
or  wife  to  testify  against  each  other  is  but  declaratory  or  the  com- 
mon law.  As  the  divorced  wife  would  have  been  a  competent  wit- 
ness if  she  had  still  been  the  wife  of  the  accu^^ed  at  the  time  of  the 
trial  as  to  the  alleged  attempted  felony  upon  her,  it  tollows,  a  fortiori, 
that  being  divorced  did  not  disqualify  her.  The  accused  was 
allowed  to  introduce  testimony  tending  to  show  that  the  wife  was 
unchaste.  She  had  not  testified  as  a  witness,  and  it  is  aifificult  to 
see  upon  what  ground  this  was  permitted.  It  is  not  supposable  that 
a  court  acted  upon  the  idea  that  unfaithfulness  upon  her  part  of  her 
marital  vows  authorized  her  husband  to  poison  her.  The  evidence 
was  incompetent. 

The  case  of  Turnbull  v.  The  Commonwealth,  79  Ky.  495,  is  over- 
ruled in  so  far  as  it  conflicts  with  this  opinion. 

This  opinion  is  ordered  to  be  certified  to  the  lower  court  as  the 
law  of  the  case.' 


'  See,  also,  Whipp  v.  Fkt  State,  34  Ohio  St.  87 


CHAPTER  IV. 
DIVORCE  AND  SEPARATION. 

Jurisdiction. 
DITSON  V.  DITSON.' 

4  R.  I.  87.  — 1856. 

Petition  for  divorce.  The  petition  represented  the  petitioner  as 
of  Little  Compton,  in  the  State  of  Rhode  Island,  and  that  she  had 
resided  within  the  state  for  the  last  three  years;  that  she  was  married 
to  -George  L.  Ditson,  in  the  city  of  New  York,  in  October,  1842; 
that  she  has  at  all  times  faithfully  performed  her  duties  as  a  wife,  but 
that  her  said  husband  has  treated  her  with  extreme  cruelty;  has 
neglected  and  refused,  being  of  sufficient  ability,  to  provide  neces- 
saries for  the  subsistence,  and  has  wilfully  deserted  her  for  the  last 
three  years,  and  been  guilty  of  other  gross  misbehavior  and  wicked- 
ness repugnant  to,  and  in  violation  of,  the  marriage  covenant;  that 
her  said  husband  is  not  within  this  state,  nor  within  fifty  miles  of 
Newport.  Prayer,  for  a  decree  of  divorce  from  the  bond  of  matri- 
mony between  the  petitioner  and  her  husband,  and  that  the  name 
of  the  petitioner  be  changed  from  her  name  of  Mary  Ann  Ditson,  to 
her  maiden  name  of  Mary  Ann  Simmons,  and  for  further  relief. 

Accompanying  the  petition  was  an  affidavit  of  the  petitioner, 
stating  that  her  husband  was  not  a  resident  of  this  state,  and  was 
in  parts  unknown  to  the  petitioner.  The  petition  was  filed  in  the 
clerk's  office  of  the  Supreme  Court  for  the  county  of  Newport,  on  the 
9th  day  of  July,  1856;  and  the  clerk  certified  that  he  had' given  six 
weeks'  notice  of  the  application  by  publishing  it  in  the  Newport 
Mercury  for  that  period  next  before  the  sitting  of  the  court  at  the 
present  August  term. 

It  appeared  that  the  petitioner,  then  Mary  Ann  Simmons,  was 
married,  without  the  knowledge  or  consent  of  her  father,  whilst  a 
girl  at  school  in  New  York,  to  George  L.  Ditson,  an  Englishman,  to 
whom  she  had  been  introduced  outside  the  school,  the  ceremony 
being  performed  by  Dr.  Spring  on  the  13th  of  November,  1842;  that 
after  marriage,   Mr.   and   Mrs.    Ditson   went  to   Europe,   and  from 

'  "  Upon  the  whole  subject  of  jurisdiction  in  divorce  suits,  no  case  in  the 
books  is  more  full  and  satisfactory  than  that  of  Ditson  v.  Ditson,  4  R.  I.  87."  — 
Cooley.     Constitutional  Limitations,  6th  ed.  note. 

[240J 


JURISDICTION.  241 

thence  to  Cuba,  where  they  resided  for  several  years;  that  shortly 
after  their  return,  Ditson  went  to  Europe  by  himself,  leaving  his 
wife,  then  in  a  feeble  and  emaciated  condition,  without  any  pro- 
vision, to  be  supported  by  her  father,  and  was  gone  about  two  years; 
that  he  returned,  however,  and  lived  with  her  again  for  a  short 
period,  treating  her  morosely  and  unkindly;  but  there  was  no  proof 
of  extreme  cruelty,  though  he  locked  her  up  once  in  her  chamber 
tor  making  a  purchase  that  displeased  him,  and  treated  her  with 
neglect  and  spoke  of  her  in  a  careless  and  indifferent  manner.  The 
last  time  he  left  her  was  in  Boston,  whence  he  went  to  Europe, 
saying  just  before  he  went,  to  a  witness,  "  that  he  meant  to  go  away, 
and  did  not  care  a  damn  for  Boston  or  anybody  in  it."  Upon  being 
thus  deserted  the  petitioner  came  to  live  with  her  father  at  Little 
Compton,  R.  I.,  of  which  place  he  was  a  native,  and  then  a  domiciled 
inhabitant.  Ditson  had  been  absent,  at  the  time  of  filing  the 
petition,  for  upwards  of  three  years,  during  which  time  he  had  not 
once  communicated  by  letter  or  message  with  his  wife,  or  left,  or 
made,  any  provision  for  her  support,  though  of  sufficient  ability  to 
do  so.  From  the  time  of  his  desertion  the  petitioner  had  lived  with 
her  father  in  Little  Compton,  except  about  three  months  of  the 
time,  which  she  had  passed  in  Newport,  R.  L  During  this  time  she 
had  been  wholly  supported  by  her  father,  except  in  what  manner  did 
not  appear,  the  little  she  had  been  able,  by  her  own  exertions,  to  do 
for  herself.  It  was  admitted  that  Ditson  had  never  been  domiciled 
in  Rhode  Island,  or  even,  to  the  knowledge  of  any  witness,  been 
within  the  state.  It  was  not  known  that  he  had  any  domicile  in  the 
country;  he  having  resided  since  the  marriage  either  in  Europe  or 
Cuba,  and  having  remained  but  a  short  time  either  in  Boston  or  New 
York.  No  personal  notice  of  the  application  for  divorce  had  been 
given  to  him,  and  none  attempted  to  be  given,  since,  from  his 
silence,  the  place  where  he  resided  or  temporarily  dwelt,  was  wholly 
unknown  to  the  petitioner  or  to  her  friends. 

Under  these  circumstances  the  chief  justice  intimating  a  doubt 
concerning  the  jurisdiction  of  the  court  over  the  cause,  desired  the 
counsel  for  the  petitioners  to  search  authorities  and  present  them  to 
the  court  upon  that  subject;  the  court  being  satisfied  that  the 
petitioner  had  proved  by  the  desertion  of  her  husband  without  cause, 
and  by  his  neglect  to  provide  for  her  support,  being  of  sufficient 
ability  so  to  do,  a  case  for  divorce  a  vinculo  under  the  statute, 
provided  the  court  had,  under  the  circumstances  proved,  power  and 
jurisdiction  to  grant  her  petition. 

Ames,  C.  J.  The  "act  regulating  marriage  and  divorce"  in  this 
state,  requires,  in  words,  no  other  jurisdiction  in  this  court  over  the 
[Domestic  Relations —  16.  J 


242  DIVORCE    AND    SEPARATION. 

parties  to  a  petition  for  divorce,  than  that  the  petitioner  should  have 
resided  in  the  state  for  three  years  next  before  the  preferring  of  the 
petition,  with   a  discretionary  power  in  the  court   to  dispense  with 
that  particular  ter/n,  as  it  has  been  construed,  of  residence  or  domicile. 
Dig.  1844,  p.  265,  sec.  II.     Pubhc  laws  since  Dig.  1844,  p.  670.    This 
dispensing  power  has,    however,  been   very  sparingly   exercised  by 
the  court,  and   never,  unless  indeed  the  court  may  have  been  misled 
by  false  testimony,  except  in  cases  where  a  long  previous  residence, 
and  especially   by   natives  of  the  state,  had  been  interrupted  but  a 
short  time  within  the  three  years  preceding  the  petition,  or,  in  which 
some  peculiar  circumstances  loudly  invoked  the  aid  of  the  court,  such 
as  an  open  adulterous  marriage  by  the  wife,  the  petitioning  husband 
having  resided  in  the  state  for  a  long  portion  of  the  three  years,  and 
the  court  being  satisfied  that  he  came  to  the  state,  not  for  the  pur- 
pose of  divorce,  but  bona  fide  to  reside  here,  as  a  domiciled  or  settled 
inhabitant.     Of  late  years,  it  has  never  been  dispensed  with  where 
the  alleged  cause  of  divorce,  occurring  in  another  state,  was  not  a 
cause    for   the   species  of   divorce  asked,    in   that  state.       There  is 
nothing,  however,  in  the  statute,  as  we  regard  it,  which  obliges  the 
court  to  take  jurisdiction  of  such  a  petition  merely  because  one  of 
the  parties  only,  the  petitioner,  is  a  resident  of  the  state,  though  he  or 
she  may  have  been  such  for  the  period  of  three  years  next  preceding 
the  petition,  although,  it  must  be  admitted,  that  the  practice  under 
the  statute  has  proceeded  upon  that  supposition.    By  the  loth  section 
of  the  act  of  this    state    "  regulating  marriage  and  divorce,"  this 
court  is  authorized  "by  rule  or  otherwise  to  prescribe  the  notice  to 
be  given  on  petitions  for  divorce,  alimony,  separate  maintenance,  and 
custody  of  children,  and  may  issue  such  process  as  may  be  necessary 
to  carry  into  effect  the  powers  conferred  on  them  by  this  act."     Dig. 
1844,  pp.  264,  265.    By  the  14th  rule  of  the  court,  made  by  the  authority 
of  this  act,  "  On  all  petitions  for  divorce,  the  adverse  party,  if  resi- 
dent within  this  state,  or  within  fifty  miles  of  the  place  of  trial,  shall 
be  notified  and  served  with  a  copy  of  such  petition,  three  weeks  at 
least  before   the  sitting  of  the  court,  and  if  resident  without  the 
state,  and  more  than  fifty  miles  from  the  place  of  trial,  notice  shall 
be  given  in  some  one  of  the  public  newspapers,  printed  in  Newport 
or  Providence,  six  weeks  before  the  sitting  of  the  court,  and  such 
petitions  as  contain  an   allegation  that    the    adverse   party    is    not 
resident  in  this  state,  or  within  fifty  miles  of  the  place  of  trial,  shall 
be  accompanied  with  an  affidavit  of  the  petitioner,  stating  his  or  her 
knowledge  and  belief  of  the  place  of  residence  of  such  adverse  party." 
Rules  of  Sup.  Ct.  of  R.  I.  prefixed  to  Vol.  I,   R.  I.  Reports,  pp.  xii 
and  xiii.     Under  this  rule,  this  court  has  acted  in  giving  constructive 


JURISDICTION.  243 

notice  to  non-resident  defendants  to  petitions  for  divorce,  in  cases 
where  relief  of  this  kind  has  been  asked  by  resident  citizens,  and 
has,  upon  proper  proof,  afforded  that  relief,  even  though  the  defend- 
ants have  never  resided  within  this  state  or  subjected  themselves  in 
any  way  to  its  jurisdiction.  If,  however,  it  appeared  from  the 
affidavit  of  the  petitioner  or  otherwise,  in  the  course  of  the  hearing, 
that  the  petitioner  knew  of  the  place  of  residence  of  the  other  party, 
and  that  place  was  within  the  United  States,  the  practice  has  for 
many  years  been  to  continue  the  petition,  and  order  personal  notice 
of  the  pendency  thereof  to  be  given  to  such  party  through  the  mail. 
In  the  case  at  bar,  under  this  rule,  upon  affidavit  of  the  petitioner 
that,  according  to  her  best  knowledge  and  belief,  the  defendant,  her 
husband,  doth  not  reside  in  this  state,  or  within  fifty  miles  of  the 
town  of  Newport,  but  is  in  parts  unknown,  he  being  a  foreigner,  the 
notice  prescribed  by  the  rule  has  been  given,  by  publication  of  the 
same,  for  the  space  of  si.x  weeks  before  the  sitting  of  the  court,  in 
the  Newport  Mercury,  a  paper  printed  in  the  city  of  Newport.  If, 
however,  by  the  general  law  pertaining  to  this  subject,  a  decree  of 
divorce  a  vinculo,  made  here,  be  void  elsewhere,  unless  both  parties 
to  the  marriage  are  resident  in  this  state  at  the  tine  of  the  application, 
or  the  respondent  has  been  served  with  notice  in  the  state,  or  being 
served  without  notice  out  of  it,  has  appeared  and  submitted  himself 
to  our  jurisdiction,  so  far  from  feeling  compelled  by  the  language 
of  our  statute,  as  it  stands  at  present,  to  pass  such  decrees,  we  should 
feel  compelled  to  refuse  to  pass  them,  lest  they  should  bring  upon 
the  resident  petitioner,  in  such  cases,  greater  evils  than  those  which 
our  statute  was  designed  to  remedy. 

When,  therefore,  this  question  presented  itself  to  the  court  for  the 
first  time  since  I  had  the  honor  of  presiding  over  it,  in  the  case  at 
bar,  my  brethren  on  the  bench,  though  less  doubtful  with  regard  to 
our  jurisdiction  in  such  a  case  than  myself,  consented,  at  my  request, 
to  reserve  the  question  for  mature  consideration  and  deliberate 
decision,  in  order  that  the  course  now  adopted  might  for  the  future 
guide  ourselves  as  well  as  those  subject  to  our  jurisdiction.  Every 
case,  during  our  recent  circuit,  in  which  it  has  since  arisen,  has  also 
been  reserved;  and  the  question  having  been  argued  before  us  by  the 
counsel  in  this  case,  was  already  under  consideration,  when  our  atten- 
tion was  attracted  by  a  remark  of  the  learned  chief  justice  of  Massa- 
chusetts, in  delivering  the  judgment  of  his  court  in  the  recently 
reported  case  of  Lyon  v.  Lyon,  2  Gray,  367,  decided  in  1854,  that  this 
court,  in  its  decree  of  divorce,  reviewed  and  considered  in  that  case, 
had  violated,  upon  this  subject,  principles  of  general  law.  Such  a 
remark,  coming  from  a  quarter  entitled  to  so  much  respect,  has  only 


244  DIVORCE    AND    SEPARATION. 

induced  us  more  carefully  to  scrutinize  by  the  light  of  the  genera/ 
law  the  true  grounds  of  jurisdiction  in  such  cases;  so  that,  however, 
in  ex  parte  hearings  of  them,  we  may  be  occasionally  misled  as  to 
facts,  it  may  not  be  supposed  that  we  are  careless  of,  or  would 
deliberately  violate  in  this  respect  settled  principles  of  law. 

In  the  case  of  Lyon  v.  Lyon^  supra,  which  was  an  application  for 
divorce  on  the  part  of  a  husband  residing  in  Massachusetts,  a  former 
decree  of  this  court  divorcing  the  same  parties  a  vinculo  on  the  applica- 
tion of  the  wife,  was  delared  void,  partly  on  the  ground  that  it  was 
obtained  here  by  a  domiciled  inhabitant  of  Massachusetts  in  fraud 
of  a  statute  of  that  state,  which  avoids  divorces  obtained  out  of  the 
state  for  causes  occurring  in  it,  or  for  any  cause  which  would  not 
authorize  a  divorce  by  its  laws,  when  obtained  by  a  citizen  of  Massa- 
chusetts who  goes  "into  any  other  state  or  country  in  order  to 
obtain  the  divorce."  We  have  no  remark,  except  of  approval,  to 
make  of  the  statute  of  Massachusetts,  or  of  this  decision  under  it, 
upon  the  facts  made  to  appear  ex  parte  to  that  court,  probably  quite 
different  from  the  facts  made  to  appear  in  the  same  matter  before, 
ex  parte,  to  this. 

It  is  a  well-settled  principle  of  general  law  upon  this  subject  that 
the  tribunals  of  a  country  have  no  jurisdiction  over  a  cause  of  divorce, 
wherever  the  offense  may  have  occurred,  if  neither  of  the  parties 
has  an  actual  bona  fide  domicile  within  its  territory,  and  this  holds, 
whether  one  or  both  the  parties  be  temporarily  residing  within  reach 
of  the  process  of  the  court,  or  whether  the  defendant  appears  or  not, 
and  submits  to  the  suit.  This  necessarily  results  from  the  right  of 
every  nation  or  state  to  determine  the  status  of  its  own  domiciled 
citizens  or  subjects,  without  interference  by  foreign  tribunals  in  a 
matter  with  which  they  have  no  concern.  Bishop  on  Marriage  and 
Divorce,  sec.  721,  p.  721,  2d  ed.  and  cases  cited.  We  entirely  agree 
with  the  judgment  given  by  the  Supreme  Court  of  Massachusetts  on 
this  point  in  the  well-considered  case  of  Hanover  v.  Turner,  14  Mass. 
227,  231,  in  which  both  this  rule,  and  the  reason  for  it,  are  stated 
with  that  precision  and  largeness  of  view  which  indicate  that  the 
court  fully  comprehended  the  question  before  them  as  a  question  of 
general  law;  a  kind  of  praise  which  cannot,  with  any  justice,  be 
bestowed  upon  many  American  cases  upon  this  important  and  inter- 
esting subject. 

Our  attention  has  been  attracted  to  the  case  of  Lyon  v.  Lyon, 
because,  in  it,  the  decree  of  this  court  divorcing  Mrs.  Lyon  is 
arraigned  and  declared  void  upon  general  principles  of  law  apart 
from  the  statute,  that  is,  as  we  understand  it,  apart  from  the  princi- 
ple of  general  law  embodied  in  it.     The  learned  court  are   made  to 


JURISDICTION.  245 

say  that,  "upon  general  principles  of  justice  and  policy,"  the  decree 
in  question  would,  "  before  the  Revised  Statutes,"  have  been  held  void, 
"partly  on  the  ground  that  it  was  a  proceeding  in  fraud  of  our  law," 
to  which  we  agree  upon  the  facts  proved  to  the  court,  "and  partly 
because  the  court  of  the  foreign  state  (Rhode  Island)  could  have 
no  jurisdiction  of  the  subject-matter  and  of  both  the  parties." 
2  Gray,  368,  369.  And  again,  at  the  conclusion  of  the  opinion,  the 
court  recur  to  the  same  matter  :  "But  if  not  within  the  statute,  for 
the  reasons  before  given,  we  are  of  opinion  that  the  decree  in  ques- 
tion is  void  upon  general  principles  of  law."  lb.  370.  By  this  we 
understand  that  the  learned  court  must  have  intended  —  First,  that 
by  the  general  law  applicable  to  the  subject  of  divorce  the  Supreme 
Court  of  Rhode  Island  had  no  jurisdiction  of  the  subject-matter 
either  because  the  marriage  took  place,  or  because  the  alleged  cause 
of  divorce  occur ved  out  of  its  jurisdiction  ;  and.  Second,  because  the 
court  had  not  jurisdiction  of  both  parties,  the  husband  not  being 
domiciled  in  Rhode  Island,  and  no  effectual  service  upon  him  ivithin 
the  state  having  been  obtained,  and  he,  by  appearance,  not  having 
submitted  his  cause  to  the  jurisdiction  of  the  court. 

With  regard  to  the  alleged  want  of  jurisdiction  over  ''the  subject- 
matter,"  which  includes,  as  distinct  from  jurisdiction  over  the  par- 
ties, only  the  marriage  and  cause  of  divorce,  we  think  that  there 
must  be  some  inaccuracy  in  the  language  of  the  report.  We  think 
so,  because,  as  said  by  Judge  Story,  "The  doctrine  now  y?rw/y  estab- 
lished in  America  upon  the  subject  of  divorce  is,  that  the  law  of  the 
place  of  the  actual  bona  fide  domicile  of  the  parties  gives  jurisdiction 
to  the  proper  courts,  to  decree  a  divorce  for  any  cause  allowed  by 
the  local  law,  without  any  reference  to  the  law  of  the  place  of  the 
original  marriage,  or  to  the  place  where  the  offence  for  which  the 
divorce  is  allowed  was  committed."  Story's  Conflict  of  Laws,  sec. 
230a;  and  Bishop  on  Marriage  and  Divorce,  sec.  720,  and  note  2, 
where  see  a  very  instructive  note,  containing  all  the  authorities, 
domestic  and  foreign.  See  also  lb.  §§  740,  741,  &c.  We  think  so, 
more  especially,  because,  as  we  understand  the  scope  of  his  reason- 
ing, no  one  has  vindicated  this  doctrine  of  American  law  with  more 
ability  than  the  present  learned  chief  justice  of  Massachusetts,  in 
delivering  the  judgment  of  his  court  in  the  case  of  Harteau  v.  Harteau, 
14  Pick.  181,  185,  186.  We  regard,  therefore,  the  alleged  want  of 
jurisdiction  in  Mrs.  Lyon's  case,  on  the  ground  of  want  of  jurisdic- 
tion over  the  subject-matter  as  something  distinct  from  want  of  juris- 
diction over  both  parties,  as  a  mere  inaccuracy  of  statement,  the 
court  intending,  perhaps,  that,  not  having  jurisdiction  over  both 
parties,  the  Supreme  Court  of  Rhode  Island  had  neither  jurisdiction 


246  DlVOKlK    AND    SKPAKAIION. 

over  the  marriage  nor  the  delictum  —  that  is,  over  the  subject-matter. 
It  IS  true  that  in  Barber  v.  Root.,  10  Mass.  265,  266,  a  case  referred 
to  by  the  learned  court  in  Lyon  v.  Lyon  for  the  grounds  of  their 
judgment,  stress  seems  to  be  laid  upon  the  place  of  contract  and  of  the 
place  of  the  violation  of  it,  as  affording  or  not  affording  ground  for 
jurisdiction,  as  the  case  might  be,  over  the  subject-matter,  partly  upon 
the  idea  of  the  subsistence  or  non-subsistence  of  the  contract  within 
the  territory  of  the  court  taking  jurisdiction,  and  partly,  so  far  as 
the  delictum  was  concerned,  upon  some  notion  of  police.  We  under- 
stand, however,  the  Supreme  Court  of  Massachusetts  to  have  rejected 
both  these  false  and  confused  notions;  and  in  Hanover  v  Turner,  14 
Mass.  230,  231 ;  Harteau  v.  Harteau,  14  Pick.  182-187,  incl.,  and  there- 
fore in  Lyon  v.  Lyon^  2  Gray,  368-370,  to  be  understood  as  regarding 
marriage  not  as  an  executory  contract  between  the  parties  to  it,  but  as 
an  universally  recognized  relation  between  them,  deeplyaffecting  their 
status,  or  legal  and  social  condition,  and  for  that  reason  properly  dis- 
soluble according  to  the  law  of  the  country  in  which  they  are  domi- 
ciled, without  reference  to  the  law  of  the  place  of  the  original  con- 
tract of  marriage,  out  of  which  the  relation  has  emerged.  We  also 
understand  the  result  of  these  decisions  to  be,  that  a  breach  of  the 
duties  of  this  relation,  though  sometimes  a  crime,  and  when  such, 
punishable  in  that  character  only  in  the  place  where  it  is  committed, 
yet  considered  as  a  cause  of  divorce,  to  have  no  locality  and,  there- 
fore, to  be  regarded  as  a  cause  of  divorce,  wherever  occurring  or 
committed,  equally  as  if  it  had  occurred  or  been  committed  within 
the  territory  of  the  state  having  jurisdiction  over  the  parties,  in  the 
sense  of  both  parties  to  the  relation. 

We  may  remark  in  passing,  although  we  do  not  mean  to  launch 
into  the  sea  of  conflict  on  this  subject  between  the  laws  of  England 
and  Scotland,  that  whilst  it  is  the  doctrine  of  both  the  Scotch  and 
English  courts,  as  well  as  of  our  own,  that  the  place  where  the 
offence  is  committed,  whether  in  the  country  where  the  suit  was 
brought,  or  a  foreign  country,  is  immaterial  to  jurisdiction  in  divorce, 
it  is  the  equally  well-settled  doctrine  of  the  Scotch  courts  that  the 
place  of  marriage  is  also  immaterial;  and  this  doctrine,  as  a  doctrine 
of  the  Scotch  law,  has  recently  received  the  approbation  of  the 
House  of  Lords,  sitting  upon  a  Scotch  appeal,  if  some  doubt  be  not 
also  thrown  by  the  decision  upon  the  peculiar  doctrine  of  the 
English  law,  as  held  in  McArthy  v.  McArthy,  and  supposed  to  be  held 
in  Lolleys  Case,  that  an  English  marriage  cannot  be  dissolved  by  a 
foreign  tribunal.  Geils  v.  Dickenson,  20  Eng.  L.  &  Eq.  R.  i,  10,  ii, 
opinion  of  Lord  St.  Leonards;  and  see  Bishop  on  Marriage  and 
Divorce,  §§  745-761  incl..  and  cases  cited. 


JURISDICTION.  247 

The  other  principle  of  general  law  mentioned  in  the  decision  of 
Lyon  V.  Lyon,  supra,  as  violated  by  this  court  in  divorcing  Mrs.  Lyon, 
to-wit,  that  the  court  had  not  jurisdiction  over  both  parties  to  the 
marriage,  presents  a  more  difificult  question,  and  one  which,  as  we 
have  said,  had  attracted  our  attention  previous  to  our  knowledge  of 
the  above  decision  and  opinion  of  the  Supreme  Court  of  Massachusetts. 

The  question  raised  by  the  case  at  bar,  and  for  the  decision  of 
which,  in  the  affirmative,  this  court  is  said  by  the  Supreme  Court  of 
Massachusetts,  in  Lyon  v.  Lyon,  to  have  pronounced  a  decree  in  favor 
of  Mrs.  Lyon,  void  upon  general  principles  of  law,  is,  whether  the 
bona  fide  domiciliation  of  the  petitioning  party  in  this  state,  is  suffi- 
cient to  give  this  court  jurisdiction  to  grant  a  divorce  a  vinculo, 
although  the  other  party  to  the  marriage  to  be  dissolved  has  never 
been  subject  to  our  jurisdiction,  never  been  personally  served  with 
notice  of  the  petition  within  the  state,  or  appeared  and  answered 
to  the  petition,  upon  constructive  notice,  or  upon  being  served  with 
personal  notice  of  it,  out  of  the  state  ?  In  other  words,  the  ques- 
tion is,  whether,  as  a  matter  of  general  law,  a  valid  decree  of 
divorce  a  vinculo  can  be  passed  in  favor  of  a  domiciled  citizen  of 
the  state,  upon  mere  constructive  notice  to  the  foreign  or  nonresi- 
dent party  to  the  marriage,  against  whom,  or  to  dissolve  whose  marital 
rights  over  or  upon  the  petitioner,  the  aid  of  the  court  is  invoked? 
Such  a  question,  as  said  by  a  late  excellent  writer  upon  this  subject, 
can  never  arise  in  England,  where  this  whole  matter,  so  far  as  it  is  a 
matter  of  judicial  determination,  is  committed  to  the  ecclesiastical 
courts.  Those  courts  have  no  power  to  dissolve  marriages,  good 
ab  initio,  for  supervenient  causes,  and  can  only  act  for  such  causes 
upon  suits  for  divorce  a  viensa  et  thoro  and  for  restoration  to  marital 
rights,  their  jurisdiction  in  jactitation  suits,  being  confined  to  the 
ascertainment  of  whether  a  marriage  reputed  or  boasted  of,  ever 
existed,  and  in  nullity  suits,  to  the  declaring  marriages  void,  or 
avoiding  them  from  the  time  of  the  decree,  which  from  causes  pre- 
existing the  ceremony  of  marriage,  were,  by  law,  either  void  or 
voidable  ab  initio.  The  common  law  of  their  jurisdiction,  as  shown 
by  the  io6th  canon  of  1603,  and  afterwards  enacted  by  statute,  was, 
that  no  person  could  be  cited  out  of  his  diocese;  the  court  interfering 
in  such  matters,  it  is  said,  for  the  good  of  souls  merely,  and  its  juris- 
diction being  confined,  with  that  of  the  bishop  or  ecclesiastical 
dignitary  represented  by  it,  to  the  care  of  the  souls  of  those 
domiciled,  or  at  least  present,  within  the  diocese.  It  is  also  held 
that  the  canon  does  not  apply  to  persons  having  no  fixed  residence 
in  the  kingdom,  but  only  to  persons  cited  who  are  inhabitants  and 
dwellers  in  some  diocese  or  district  placed  by  law  under  some  particular 


248  DIVORCE   AND   SEPARATION. 

ecclesiastical  jurisdiction,  and  that  the  statute  does  not  extend  to 
Ireland.  Bishop  on  Marriage  and  Divorce,  §  733,  and  p.  734,  n.  2 
2d  ed.  I  Blacks.  Com.  441,  442  and  notes.  3  lb.  92-95  and  notes. 
4  lb.  275,  276,  vide  passim,  N.  Y.  Ed.  1827.  It  is  evident  that  the 
peculiar  jurisdiction  of  these  courts  does  not  depend  upon  the 
domicile  of  the  libellant,  who,  though  a  foreign  or  Scotch  resident, 
may  follow  his  wife,  or  she  her  husband,  into  the  proper  ecclesiastical 
tribunal  of  England  for  the  appropriate  relief  to  the  case  which  it  is 
empowered  to  give.  The  court  must,  however,  have  jurisdiction 
over  the  defendant,  or  its  decree,  from  its  nature,  could  have  no 
personal  effect  upon  him  or  her;  but  except  the  defendant  be  domiciled 
in  some  particular  diocese  or  district  it  is  apprehended  that  a 
temporary  residence  of  the  defendant  in  such  district  or  diocese,  is 
sufficient  to  give  the  court  jurisdiction.  In  Geils  v.  Dickenson,  20 
Eng.  L.  &  Eq.  R.  i,  9,  10,  13,  14,  the  marriage  having  taken  place  in 
England,  between  a  Scotchman  and  an  English  woman,  the  parties 
were  domiciled  in  Scotland,  paying  only  occasional  visits  to  England. 
They  resided  in  Scotland  until  September,  1845,  when  the  wife  left 
her  husband  and  returned  to  her  mother's  house  in  England.  In 
October,  1845,  the  husband  instituted,  in  the  Arches  Court  of  Canter- 
bury, a  suit  for  restitution  to  conjugal  rights,  to  which  the  wife  gave  in 
a  "  responsive  allegation,"  in  which  she  stated  various  acts  of  cruelty 
and  adultery  committed  by  her  husband  in  Scotland,  and  became  an 
actor  in  the  cause  as  well  as  a  defendant,  by  praying  that  she  might 
"be  separated  from  bed,  board,  and  mutual  cohabitation"  with  her 
husband  by  reason  of  his  adultery,  and  cruel  and  unnatural  practices 
upon  the  person  of  the  proponent.  The  arches  court  entertained 
both  the  original  suit  and  the  new  action  raised  by  way  of  defense 
in  it,  and  finding  the  alleged  adultery  of  the  husband  proved,  divorced 
the  wife,  as  she  desired,  from  bed,  board,  and  cohabitation  with  her 
husband,  until  they  might  be  reconciled  to  each  other,  inhibiting  both 
from  contracting  another  marriage  during  the  lifetime  of  the  other. 
The  ecclesiastical  court  in  this  case  took  jurisdiction  at  the  suit  of  a 
plaintiff  domiciled  in  Scotland,  pursuing  his  wife  thence  to  England 
for  its  relief  against  her,  freshly  returned  to  its  jurisdictional  district, 
and  again  upon  her  "  responsive  allegation,"  both  as  a  defendant  and 
actor  in  the  cause,  granting  her  a  divorce.  The  wife  subsequently 
raised  an  action  for  divorce  a  vinculo  in  Scotland,  for  the  same  acts 
of  adultery  by  virtue  of  which  she  defended  herself  and  obtained  the 
divorce  a  mensa  et  thoro  in  England,  which  was  granted  by  the  court  of 
session,  and  afterwards  confirmed,  on  appeal,  by  the  House  of  Lords; 
and  although  the  only  question,  both  below  and  above,  turned  upon 
the  effect  of  the  decree  of  the  court  of  arches  —  that  is,  whether  it 


JURISDICTION.  249 

estopped  her  from  further  relief,  or  was  legally  consistent  with  it, — 
neither  court  nor  counsel  intimated  a  doubt  as  to  the  jurisdiction  of 
the  court  rendering  the  decree.  It  is  evident  that  from  the  peculiar 
principles  which  regulate  the  jurisdiction  and  action  of  the  English 
ecclesiastical  courts,  in  matters  of  divorce,  very  little  light  can  be 
gathered  to  aid  us  in  our  investigation. 

As  a  matter  of  general  law  this  must  be  sought  in  the  legal  nature 
of  marriage,  and  what  it  consequently  is,  upon  which  a  decree  of 
divorce  operates,  and  in  the  jurisdiction  of  a  state  over  its  own  citi- 
zens and  subjects,  as  well  as  in  the  decisions  of  courts  bearing  directly 
upon  this  point,  or  elucidating  the  principles  which  govern  its  decision. 
It  is  undoubtedly  true,  as  a  common-law  principle,  applicable  to  the 
judgments  of  its  courts,  that  they  bind  only  parties  to  them,  or  per- 
sons in  such  relation  to  the  parties  and  to  the  subject  of  the  judg- 
ment, as  to  be  deemed  privies  to  it  The  rule  of  this  system  of 
jurisprudence,  which  brings  privies  within  the  operation  of  the 
notice  served  upon  the  principals  to  a  judgment  and  binds  them  by 
its  effects,  is  founded  upon  quite  as  clear  a  policy,  and  is  sanctioned 
by  quite  as  complete  justice,  as  that  which  renders  the  judgment 
obligatory  upon  those  whom  they  represent.  It  is  founded  upon  the 
great  policy  ut  sit  finis  litiiim,  and  upon  the  necessity,  to  carry  out 
this  policy,  that  the  future  and  contingent  representatives  of  the  par- 
ties in  relation  to  the  subject  of  the  judgment  should  be  bound  by 
it.  Again,  there  is  no  system  of  jurisprudence,  which,  founded  as  the 
jurisdiction  of  the  court  is  upon  the  personal  service  of  the  subpoena, 
is  more  special  in  its  requisition  that  all  parties  interested  should  be 
served  in  the  suit,  in  order  to  be  bound  by  the  decree,  than  that 
administered  by  the  English  chancery  ;  yet  even  in  this  court,  from 
the  same  policy,  and  upon  the  same  necessity,  the  yfr^-/ tenant  in  tail, 
or  the  first  person  entitled  to  the  inheritance,  if  there  be  no  tenant 
in  tail  living,  or  even  the  tenant  for  life,  as  the  only  representative 
to  be  found  of  the  whole  inheritance,  by  his  appearance  to  the  suit 
binds  to  the  decree  in  it  all  those  subsequently  and  contingently 
interested  in  the  estate  ;  the  court,  in  administering  this  rule  of 
representation  of  parties,  taking  care  only  that  the  representative 
be  one  whose  interest  in  the  subject  of  the  suit  is  such  as  to  insure 
his  giving  a  fair  trial  to  the  question  in  contestation,  the  decision  of 
which  is  to  affect  those  who  remotely  or  contingently  take  after  him. 
Again,  there  is  the  large  class  of  proceedings  /;/  j-em,  or  quasi  in  rem. 
known  especially  to  courts  administering  public  or  general  law,  and 
borrowed  from  thence  into  every  system  of  jurisprudence,  in  which, 
the  jurisdiction  being  founded  upon  the  possession  of  the  thin^-,  the 
decree  binds  all  interested  in  it,  whether  within  or  without  tlic  j  iris- 


250  DIVORCE   AND    SEPARATION. 

diction  of  the  nation  setting  up  the  court,  and  whether  personally  or 
constructively  notified  of  the  institution  or  currency  of  the  proceed- 
ing. This,  too,  is  founded  upon  a  necessity  or  high  expediency, 
since,  without  it,  a  prize  or  instance  court,  for  example,  could  not, 
so  scattered  or  concealed  are  the  parties  interested,  perform  any  of 
the  functions  for  which,  by  the  general  or  public  law,  it  is  set  up. 
Proceedings  of  this  nature  must,  we  think,  be  familiar  to  the  courts 
of  Massachusetts;  and  probably  not  a  day  passes  in  which  things 
within  their  jurisdiction  are  not,  by  direct  attachment  or  garnishee 
process,  seized,  attached,  condemned,  and  sold  under  their  judg- 
ments, without  other  than  constructive  notice  to  the  non-resident 
owners  of  them,  in  order  that  these  courts  may  do  justice  to  their 
own  citizens,  or  even  to  alien  friends,  properly  applying  to  them  for 
relief.  Here,  too,  necessity  requires  the  courts  to  dispense  with 
personal  notice,  in  order  to  give  effect  to  their  judicial  orders; 
since,  otherwise,  the  state  might  be  full  of  the  property  of  non- 
residents  and  aliens,  applicable  to  all  purposes  except  the  command- 
ing ones  of  justice.  Without  doubt,  in  these  and  other  like  cases, 
the  general  law  in  dispensing  with  personal  notice  from  necessity, 
requires  some  fair  approximation  to  it,  by  representation,  substitu- 
tion, or  at  least  such  publicity,  as  under  the  circumstances  is  proper 
and  possible,  or  the  proceeding  will  be  regarded  as  a  fraud  upon  the 
rights  of  the  absent  and  unprotected,  a  robbery  under  the  forms  of 
law,  and  so  a  fraud  upon  law  itself.  It  is,  however,  a  very  narrow 
view  of  the  general  laia,  it  is  to  form  a  very  low  estimate  of  the  wis- 
dom which  directs  its  administration,  to  suppose,  that  when  it  can 
do  justice  to  those  within  its  jurisdiction  and  entitled  to  its  aid  only 
bv  dispensing  with  personal  notice  to  those  out  oi  it,  and  substituting 
instead  what  is  possible  for  notice  to  them,  it  is  powerless  to  do 
this,  and  so,  powerless  to  help  its  own  citizens  or  strangers  within 
its  gates,  however  strong  may  be  their  claims  or  their  necessities. 
Such  a  sacrifice  of  substance  to  shadows,  of  the  purposes  to  the 
forms  of  justice,  might  mark  the  ordinances  of  a  petty  municipality, 
but  could  hardly  be  supposed  to  characterize  the  system  of  generalXd^N . 
Now,  marriage,  in  the  sense  in  which  it  is  dealt  with  by  a  decree 
of  divorce,  is  not  a  contract,  but  one  of  the  domestic  relations.  In 
strictness  though  formed  by  a  contract,  it  signifies  the  relation  of 
husband  and  wife,  deriving  both  its  rights  and  duties  from  a  source 
higher  than  any  contract  of  which  the  parties  are  capable,  and  as  to 
these,  uncontrollable  by  any  contract  which  they  can  make.  When 
formed,  this  relation  is  no  more  a  contract  than  "fatherhood"  or 
"sonship  "  is  a  contract.  It  is  no  more  a  contract  than  serfdom, 
slavery,    or    apprenticeship    are    contracts,    the    latter    of    which    it 


JURISDICTION.  251 

resembles  in  this,  that  it  is  formed  by  contract.  To  this  relation 
there  are  two  parties,  as  to  the  others,  two  or  more,  interested 
without  doubt  in  the  existence  of  the  relation,  and  so  interested  in 
its  dissolution.  These  parties  are  placed  by  the  relation  in  a  certain 
relative  state  or  condition,  under  the  law,  as  are  parents  and  children, 
masters  and  servants;  and  as  every  nation  and  state  has  an  exclusive 
sovereignty  and  jurisdiction  within  its  own  territory,  so  it  has 
exclusively  the  right  to  determine  the  domestic  and  social  condition 
of  the  persons  domiciled  within  that  territory.  It  may,  except  so 
far  as  checked  by  constitution  or  treaty,  create  by  law  new  rights  in, 
or  impose  new  duties  upon,  the  parties  to  these  relations,  or  lessen 
both  rights  and  duties,  or  abrogate  them^  and  so  the  legal  obligation 
of  the  relation  which  involves  them,  altogether.  This  it  may  do, 
with  the  exception  above  stated,  as  to  some  relations,  by  law,  when 
it  wills;  declaring  that  the  legal  relation  of  master  and  slave,  for 
instance,  shall  cease  to  exist  within  its  jurisdiction,  or  for  what 
causes  or  breaches  of  duty  in  the  relation,  this,  or  the  legal  relation 
of  husband  and  wife,  or  of  parent  and  child,  may  be  restricted  in 
their  rights  and  duties  or  altogether  dissolved  through  the  judicial 
intervention  of  its  courts.  The  right  to  govern  and  control  persons 
and  things  within  the  state,  supposes  the  right,  in  a  just  and  proper 
manner,  to  fix  or  alter  the  status  of  the  one,  and  to  regulate  and 
control  the  disposition  of  the  other;  nor  is  this  sovereign  power 
over  persons  and  things  lawfully  domiciled  and  placed  within  the 
jurisdiction  of  the  state  diminished  by  the  fact  that  there  are  other 
parties  interested  through  some  relation,  in  the  status  of  these  per- 
sons, or  by  some  claim  or  right,  in  those  things,  who  is  out  of  the  juris- 
diction, and  cannot  be  reached  by  its  process.  No  one  doubts  this,  as  a 
matter  of  general  law,  with  regard  to  the  other  domestic  relations,  and 
what  special  reason  is  there  to  doubt  it,  as  to  the  relation  of  husband 
and  wife?  The  slave  who  flees  from  Virginia  to  Canada  —  no  treaty 
obliging  his  restoration — or  who  is  brought  by  his  master  thence 
to  a  free  state  of  the  Union  —  no  constitutional  provision  enforcing 
his  return  —  finds  his  status  before  the  law  in  the  new  jurisdiction  he 
rias  entered,  changed  at  once;  and  no  one  dreams  that  this  result  of 
a  new  domicile  and  the  new  laws  of  it,  is  less  legally  certain  and 
Droper  as  a  matter  of  general  law,  because  the  master  is  out  of  the 
.Tew  jurisdiction  of  his  slave,  and  is  not,  or  cannot  be  cited  to  appear 
and  attend  to  some  formal  ceremony  of  emancipation.  It  is  true  that 
slavery  is  a  partial  and  peculiar  institution,  not  generally  recognized 
by  the  policy  of  civilized  nations;  whereas  marriage,  in  some  form, 
is  coextensive  with  the  race,  and,  as  a  relation,  is  nowhere  so  restric- 
tive and   so  binding  in   its  obligations  as   amongst  the   most  truly 


252  DIVORCE    AND    SEPARATION. 

civilized  portions  of  it.  Yet  each  nation  and  state  has  its  peculiar 
law  and  policy  as  to  the  mode  of  forming,  and  the  mode  and  causes 
for  judicially  dissolving  this  last  relation,  according  to  its  right;  and 
all  that  other  states  or  nations,  under  the  general  law  which  pervades 
all  Christendom  can  properly  demand  is,  that  in  the  exercise  of  its 
clear  right  in  this  last  respect  as  to  its  own  citizens  or  subjects,  it 
should  pay  all,  and  no  more  attention,  than  is  practicable  to  the 
competing  rights  and  interests  of  their  citizens  and  subjects.  It 
should  give  to  nonresidents  and  foreigners,  parties  to  such  a  relation  of 
general  legal  sanctity,  as  to  persons  of  the  like  description  interested 
ill  property  within  its  territory,  the  rights  to  which  are  also  every- 
where recognized,  at  least  such  notice  by  publicity  before  it  proceeds 
to  judicial  action,  as  can,  under  such  circumstances,  be  given  con- 
sistently with  any  judicial  action  at  all,  efficient  for  the  purposes  of 
justice.  To  say  that  the  general  law  inexorably  demands  personal 
notice  in  order  to  such  action,  or,  still  worse,  demands  that  all  parties 
interested  in  a  relation  or  in  property  subject  to  a  jurisdiction  shouid 
be  physically  within  that  jurisdiction,  is  to  lay  down  a  rule  of  law 
incapable  of  execution,  or  to  make  the  execution  of  laws  dependent 
not  upon  the  claims  of  justice,  but  upon  the  chance  locality,  or,  what 
is  worse,  upon  the  will  of  those  most  interested  to  defeat  it. 

It  is  very  evident,  upon  examining  the  statutes  of  the  different 
states  of  the  Union,  that  legislation  vesting  jurisdiction  for  divorce 
in  their  courts  has  followed  no  principle  of  general  law  in  this  respect 
whatsoever;  some  statutes  making  the  jurisdxtion,  or  supposing  it, 
to  depend  upon  the  place  of  the  contract,  some  upon  the  place  of  the 
delictum,  and^some,  as  in  this  state,  and  as  they  should  do,  upon  the 
domicile  of  the  wronged  and  petitioning  party.  The  courts  of  each  state 
exercise,  as  they  must,  jurisdiction  upon  the  principles  laid  down  for 
them  by  statute,  and  have  very  little  occasion,  unless  called  upon  to 
review  the  decree  of  some  neighboring  state,  .to  attend  to  or  consider 
any  ^^^^/-a/ principles  pertaining  to  the  subject.  Engaged  in  this  latter 
task  they  are  very  apt  to  confound  the  statute  principles  of  jurisdiction, 
to  which  they  are  accustomed,  with  the  principles  of  general  law 
relating  to  it;  notwithstanding  the  latter  so  obviously  grew  out  of 
the  right  of  every  state  to  regulate,  in  some  cases  by  law,  and  in 
others  by  proper  judicial  action,  according  to  the  nature  of  the  sub- 
ject, the  social  condition,  or  status,  as  it  is  called,  of  all  persons  sub- 
ject to  its  jurisdiction.  A  singular  instance  of  forgetfulness  of 
this  principle  of  "  state  sovereignty  "  is  afforded  by  the  case  of  Hull 
v.  Hull,  2  Strobhart's  Equity  Appeals,  174,  in  which  the  right  of  the 
state  of  Connecticut  to  dissolve  through  its  courts,  under  the  law  of 
that  state,  the  marriage  there  formed  between  two  of  its  own  citizens 


JURISDICTION.  253 

upon  the  petition  of  a  wife  whose  husband  had  deserted  her  and  h«r 
children  and  settled  in  South  Carolina,  constructive  notice  only  hav- 
ing been  given  to  the  absent  and  absconding  husband,  was  put  upon 
the  ground  that  dissolution  of  the  contract  of  marriage  upon  such 
notice  was  part  of  the  law  of  the  place  of  the  contract  and  so  part  of 
the  contract  itself.  The  courts  of  that  state,  it  seems,  whilst  forget- 
ting the  state  rights  of  their  northern  sister,  strenuously  insist  upon 
the  rights  of  their  own ;  holding,  according  to  the  exploded  notion 
of  Lolley  s  case,  or  rather  of  McArthyv.  McArtky,  that  a  South  Caro- 
lina marriage  cannot  be  dissolved  out  of  the  state  of  South  Carolina, 
although  any  other  may.  In  Irby  v.  Wilson,  i  Dev.  &  Bat.  Eq.  R. 
568,  576,  under  similar  circumstances,  except  that  in  this  case  the  7£///> 
was  the  deserting,  and  the  husband  thQ  petitioning  party,  the  Supreme 
Court  of  North  Carolina  held  that  a  Tennessee  divorce  was  void,  upon 
the  ground  hinted  at  in  Lyon  v.  Lyon,  supra,  to  wit,  that  such  a  pro- 
ceeding being  betiueen  parties,  and  the  wife  having  been  constructively 
notified  only,  although  such  notice  was  all  that  was  possible,  the 
courts  of  Tennessee  could  not  alter  by  way  of  redress  the  status  of 
one  of  its  own  citizens,  become  burdensome  to  him  by  the  alleged 
causeless  and  continued  desertion  of  his  wife.  Upon  the  same  prin- 
ciple, and  for  the  same  reason,  of  course.  North  Carolina  could  not 
relieve  from  the  relation,  its  citizen,  the  wife,  although  her  husband 
might  have  compelled  her  to  flee  from  him  to  the  only  home  open  to 
her  in  that  state,  by  the  grossest  violation  of  the  duties  which  their 
relation  to  each  other  imposed;  and  thus,  both  these  conterminous 
sovereignties  would  be  powerless  for  justice,  over  and  upon  the  call  of 
its  respective  domiciled  inhabitant.  In  Pennsylvania^the  jurisdiction 
is  made  to  depend  upon  jurisdiction  over  the  offender  a;/' //^<? ///«<?  ^///z^ 
ofense.  [Dorsey  v.  Dorsey,  7  Watts,  349),  as  if  the  lex  loci  delicti  were 
to  govern;  in  Louisiana,  upon  like  jurisdiction,  unless  the  marriage 
were  contracted  within  the  state,  when,  we  suppose,  the  delictum  would 
be  regarded  as  a  breach  of  contract,  if  such,  by  the  law  of  Louisiana 
in  which  the  contract  was  entered  into.  Edivard  v.  Green,  9  La  Ann. 
R.  317.  Thus,  we  perceive,  that  by  some  courts  marriage  is  treated 
as  a  species  of  continuing  executory  contract  between  the  parties, 
the  obligations  of  which,  and  the  causes  and  even  modes  of  dis- 
solving which,  are  fixed  by  the  law  of  the  place  of  contract.  So 
sacredly  local  is  it,  in  the  view  of  some,  that  it  cannot  be  dissolved 
but  by  the  courts  of  the  country  in  which  it  was  formed.  Others, 
perceiving,  that  though  a  contract,  it  is  one  universally  recognized, 
acknowledged  the  right  of  foreign  tribunals  to  act  upon  it,  provided 
that  in  doing  so,  they  govern  themselves  not  by  the  only  law  which 
they,  it  may  be  by  statute,  can  administer,  but  ascertain  whether  it 


254  DIVORCE    AND    SEPARATION. 

has  been  broken,  and  so  ought  to  be  dissolved,  by  the  law  of  ilie 
place  of  the  contract.  Some  treat  breaches  of  the  contract  of  every 
degree  as  quasi  crimes,  to  be  punished  only  in  the  place  in  which 
they  were  committed,  provided  the  parties  be  then  there  domi- 
ciled, and  others,  again,  qualify  this,  by  an  exception  in  favor  o*'  the 
tribunals  of  the  place  of  contract;  since  there  the  delicta  can  be 
treated  as  breaches  of  the  contract,  if  such  be  the  law  of  the  place 
of  contract.  If  marriage  be  a  contract,  or  the  breach  of  it  a  tort, 
it  may  well  be  asked,  why  are  they  not,  at  least,  personal  in  their 
nature,  and  transitory  in  their  legal  character,  passing  with  the 
wronged  person  wherever  he  or  she  passes,  for  redress  by  any 
tribunal  of  the  civilized  world,  which  can  obtain  jurisdiction  of  the 
person  of  the  covenant  breaker  or  trespasser? 

It  is  evident  that  from  such  confusion  of  decisions  and  reasons,  no 
general  principle  worth  considering  can,  by  any  process,  be  eliminated. 
Raising  ourselves  above  this  mist  of  misapplied  learning  and  inge- 
nuity, and  looking  at  the  matter  simply  as  it  is,  it  is  obvious  that 
marriage,  as  a  domestic  relation,  emerged  from  the  contract  which 
created  it,  is  known  and  recognized  as  such  throughout  the  civilized 
world,  that  it  gives  rights,  and  imposes  duties  and  restrictions  upon 
the  parties  to  it,  affecting  their  social  and  moral  condition,  of  the 
measure  of  which  every  civilized  state  and  certainly  every  state  of 
this  Union,  is  the  sole  judge  so  far  as  its  own  citizens  or  subjects 
are  concerned,  and  should  be  so  deemed  by  other  civilized,  and 
especially  sister  states;  that  a  state  cannot  be  deprived,  directly  or 
indirectly,  of  its  sovereign  power  to  regulate  the  status  of  its  otun 
domiciled  subj^ects  and  citizens,  by  the  fact  that  the  subjects  and 
citizens  of  other  states,  as  related  to  them,  are  interested  in  that 
status^  and  in  such  a  matter  has  a  right,  under  the  general  law,  judi- 
cially to  deal  with  and  modify  or  dissolve  this  relation,  binding  both 
parties  to  it  by  the  decree,  by  virtue  of  its  inherent  power  over  its 
own  citizens  and  subjects,  and  to  enable  it  to  answer  their  obligatory 
demands  for  justice;  and,  finally,  that  in  the  exercise  of  this  judicial 
power,  and  in  order  to  the  validity  of  a  decree  of  divorce,  whether  a 
mensa  et  thoro  or  a  vinculo  matrimonii,  the  general  law  does  not  deprive 
a  state  of  its  proper  jurisdiction  over  the  condition  of  its  own  citizens, 
because  non-residents,  foreigners,  or  domiciled  inhabitants  of  other 
states  have  not  or  will  not  become,  and  cannot  be  made  to  become, 
personally  subject  to  the  jurisdiction  of  its  courts;  but  upon  the 
most  familiar  principles,  and  as  illustrated  by  the  most  familiar 
analogies  of  general  law,  its  courts  may  and  can  act  conclusively  in 
such  a  matter  upon  the  rights  and  interests  of  such  persons,  giving 
to   them  such   notice,  actual   or  constructive,  as  the   nature   of  the 


JURISDICTION.  255 

case  admits  of,  and  the  practice  of  courts  in  similar  cases  sanctions; 
the  purpose  of  such  notice  being  to  banish  the  idea  of  secrecy  and 
fraud  in  the  proceeding  by  inviting  publicity  to  it,  as  well  as  to  give 
to  persons  out  of  the  jurisdiction  of  the  court,  every  chance  possible, 
under  the  circumstances,  of  appearing  to  the  proceeding  and  defend- 
ing, if  they  will,  their  own  rights  and  interests  involved  in  it. 

These  views  are  supported  by  the  practice  of  the  states  of  Con- 
necticut and  Tennessee  called  in  question,  as  we  have  seen,  by  the 
courts  of  South  and  North  Carolina,  as  probably  by  the  practice  of 
many  other  states,  and  certainly  by  the  long  continued  practice  of 
our  own.  They  are  sanctioned  by  the  well  considered  decision 
of  Harding  v.  Alden,  9  Greenl.  R.  140,  and  by  that  learned  juriscon- 
sult, the  late  Chancellor  Kent,  in  his  note  on  that  case,  2  Kent's 
Com.  110,  n.  b,  4th  ed.  They  are  otherwise  best  sustained  by 
authority.  Tolen  v.  Tolen,  2  Blackf.  407;  Guembell  v.  Guembell, 
Wright,  286;  Cooper  v.  Cooper^  7  Ohio,  238;  Mansfield  v  Mclntyre, 
10  lb.  27;  Harrison  v.  Harrison,  19  Alabama,  499;  Hare  v.  Hare, 
10  Texas,  355.  See  also  the  whole  subject  discussed  in  Bishop  on 
Marriage  and  Divorce,  passim,  and  especially  in  ch.  34  of  that 
valuable  work. 

It  may  be  added  that  the  distressing  consequences  which  otherwise 
might  arise  from  the  conflict  of  laws  and  decisions  upon  this  inter- 
esting and  important  subject  have  been  wisely  provided  against  by 
a  clause  of  the  constitution  of  the  United  States,  and  can  find  a 
remedy  under  it  in  the  Supreme  Court  of  the  United  States,  as  the 
court  of  last  resort,  in  cases  demanding  its  application.  By  art.  4, 
sect.  I,  of  the  Constitution  of  the  United  States,  "Full  faith  and 
credit  shall  be  given  in  each  state  to  the  public  acts,  records  and 
judicial  proceedings  of  every  other  state."  As  this  has  been  con- 
strued by  the  highest  authority  to  give  in  every  other  state  the  same 
effect  to  a  judgment  or  decree  of  a  state  court  that  it  has  in  that  in 
which  it  is  rendered  or  passed,  no  serious  injury  can  be  done  to  the 
proper  subjects  of  our  judicial  administration  by  the  errors  and 
mistakes  of  other  courts  with  regard  to  our  jurisdiction.  From  the 
nature  of  the  topics  constantly  agitated  before  it,  no  court  in  the 
world  is  better  qualified  to  deal  with  questions  of  general  law,  and 
especially  with  one  involving,  as  that  before  us  does,  the  rights  of 
a  state  of  a  union,  and  under  the  trained  qualifications  of  the 
members  of  the  court,  as  well  as  the  constitutional  power  of  the 
court  itself,  those  properly  subject  to  our  judgments  and  decrees  in 
this  respect,  as  in  all  others,  are  quite  safe,  having  honestly  obtained 
them,  in  acting  by  virtue  of  them. 

Although  as  a  general  doctrine,  the  domicile  of  the  husband  is,  by 


256  DIVORCE    AND    SEPARATION. 

luw,  that  of  the  wife,  yet  when  he  commits  an  offence,  or  is  guilty  of 
such  derehction  of  duty  in  the  relation,  as  entitles  her  to  have  it 
either  totally  or  partially  dissolved,  she  not  only  may,  but  must,  to 
avoid  condonation,  establish  a  separate  domicil  of  her  own.  This 
she  may  establish,  nay,  when  deserted  or  compelled  to  leave  her 
husband,  necessity  frequently  compels  her  to  establish  a  different 
judicial  or  state  jurisdiction  than  that  of  her  husband,  according  to 
the  residence  of  her  family  or  friends.  Under  such  circumstances 
she  gains,  and  is  entitled  to  gain,  for  the  purposes  of  jurisdiction,  a 
domicil  of  her  own  ;  and  especially,  if  a  native  of  the  state  to  which 
she  flies  for  refuge,  is  upon  familiar  principles,  readily  reintegrated 
in  her  old  domicil.  This  is  the  well-settled  doctrine  of  law  upon  the 
subject  (Bishop  on  Marriage  and  Divorce,  §§  728-730  incl.  and  cases 
cited),  and  has  by  no  court  been  more  ably  vindicated  than  by  the 
Supreme  Court  of  Massachusetts.     Harteau  v.  Harteau,  14  Pick.  181, 

185. 

A  more  proper  case  for  the  application  in  favor  of  a  petitioner  for 
divorce  of  the  foregoing  principles  relating  to  the  jurisdiction  of  the 
court  over  her  case,  and  to  the  question  of  her  domicile  in  this  state, 
can  hardly  be  imagined  than  the  case  at  bar.  The  petitioner  is  the 
daughter  of  a  native  of  this  state,  who,  though  formerly  resident  in 
Boston,  has  for  many  years  past  been  domiciled  in  his  native  place, 
Little  Compton.  Whilst  at  school  the  petitioner  became  acquainted 
with  an  Englishman  of  the  name  of  Ditson,  and  in  1842,  married 
him,  without  the  knowledge  or  consent  of  her  parents,  in  New  York. 
Immediately  after  marriage  the  couple  went  to  Europe,  and  from 
thence  to  Cuba,  where  they  lived  together  several  years.  Upon  their 
return  to  this  country,  she  being  in  a  feeble  and  emaciated  condition, 
he  deserted  her  for  the  first  time  in  Boston,  and  was  absent  in 
Europe,  without  leaving  any  provision  for  her,  for  about  two  years. 
Upon  his  return,  they  appear  to  have  lived  together  again,  he,  how- 
ever, giving  every  indication  of  a  morose  as  well  as  inattentive  hus- 
band. After  a  short  time  he  deserted  her  again  in  Boston,  declaring, 
upon  his  leaving  it  for  Europe  that  he  cared  nothing  about  it,  or  any 
person  in  it,  pointing,  as  the  testimony  is  put  to  us,  to  his  unfortunate 
wife.  He  has  been  absent  from  her  now  between  three  and  four 
years,  without  communicating  with  her,  or  providing,  though  of 
sufificient  ability,  any  thing  for  her  support,  nor  does  she  know  where 
he  is,  except  that  he  has  gone  to  Europe.  In  the  meantime,  deserted 
as  she  was,  she  was  obliged  to  return  to  her  father's  house  in  Little 
Compton,  where,  during  this  time,  supported  by  him  or  by  her  own 
exertions,  she  has  resided,  with  the  exception  of  about  three  months 
passed  by  her  in   Newport,   Rhode   Ishmd.      For  this  desertion  and 


JURISDICTION.  257 

neglect  to  provide  for  her,  the  proof,  ex  parte  it  is  true,  but  coming 
from  respectable  sources,  finds  no  excuse  in  her  conduct,  which, 
according  to  it,  has  always,  so  far  as  known,  been  that  of  a  dutiful 
and  faithful  wife.  We  reserved  this  case,  the  first  on  the  circuit 
which  presented  the  question  before  discussed  for  consideration,  it 
being  admitted  that  the  husband  of  the  petitioner  had  never  resided 
with  her  in  this  state,  or  even,  as  the  proof  showed,  been  within  its 
borders,  and  was  now  abroad  in  parts  unknown,  and  was  not,  of 
course,  personally  served,  because  under  such  circumstances  he  could 
not  be  personally  served  with  the  ordinary  citation  issued  by  us  to  a 
resident  defendant  to  such  a  petition.  Under  the  authorized  rule  of 
this  court,  in  regard  to  constructive  notice  to  an  absent  defendant  to 
a  petition  for  divorce,  upon  affidavit  of  the  facts,  six  weeks'  notice  of 
the  pendency  of  this  petition  was  given,  by  publishing  the  same  for 
the  space  of  six  weeks  next  before  the  sitting  of  the  court  at  this 
term,  and  it  is  evident  that  the  husband  of  this  lady  knows,  as  from 
his  conduct  it  is  apparent  that  he  cares,  nothing  about  this  proceeding. 
Whatever  was  the  former  domicile  of  the  petitioner,  we  are  satisfied 
that  she  is,  and  has,  for  upwards  of  the  last  three  years,  been  a 
domiciled  citizen  of  Rhode  Island,  her  only  home,  in  the  house  of  her 
father;  and  that,  as  such  citizen,  and  upon  such  notice,  we  have 
power  and  jurisdiction  over  her  case,  and  to  change  her  condition 
from  that  of  a  married  to  that  of  a  single  woman,  granting  to  her 
the  relief,  which,  under  like  circumstances,  the  law  and  policy  of 
Rhode  Island  accords  to  all  its  citizens.  Let  a  decree  be  entered 
divorcing  Mary  Ann  Ditson  from  George  L.  Ditson,  and  annulling 
the  bond  of  matrimony  now  subsisting  between  them;  and  that  the 
name  of  the  said  Mary  Ann  Ditson  be  changed  to,  and  she  be  here- 
after known  and  called  by  the  name  of,  Mary  Ann  Simmons, 
according  to  the  prayer  of  her  petition. 


FELT  V.  FELT 
59  N.  J.  Eq.  606.  — 1899. 

GuMMERE,  J.  The  appellant,  by  her  bill  in  this  case,  seeks  a  decree 
of  divorce  from  her  husband  for  adultery,  and  also  for  desertion. 
The  respondent  has  pleaded,  in  bar  of  the  relief  sought,  a  decree  of 
absolute  divorce  obtained  by  him  against  the  appellant  in  a  district 
court  of  the  territory  of  Utah.  A  full  recital  of  the  averments  of 
the  plea  is  not  necessary.  It  is  sufficient  for  present  purposes  to  say 
that  the  truth  of  those  averments  is  conceded  by  the  appellant;  that 
[Domestic  Relations — 17.] 


258  DIVORCE   AND    SEPARATION. 

from  them  it  appears  that  the  court  which  rendered  the  decree 
pleaded  had  jurisdiction  of  the  subject-matter  of  the  suit,  and  of  the 
respondent  here,  who  was  the  complainant  therein  and  who  at  the 
time  of  the  institution  of  the  suit  was  a  bona  fide  resident  of  the  terri- 
tory of  Utah;  that  the  domicile  of  his  wife  was  in  this  state,  and 
that  she  was  neither  served  with  process  within  the  territory  of  Utah, 
nor  did  she  personally  submit  herself  to  the  jurisdiction  of  the  court, 
but  that  jurisdiction  was  obtained  by  publication  of  the  process  and 
complaint  made  in  accordance  with  the  statutes  of  Utah;  that,  in 
addition,  personal  service  thereof  was  made  upon  her,  at  her  residence 
in  New  Jersey,  a  sufficiently  longtime  before  the  period  within  which 
to  make  answer  had  expired,  to  afford  her  an  opportunity  to  defend 
the  suit,  if  she  had  desired  to  do  so;  and  that  the  decree  was  granted 
upon  two  grounds,  viz.,  cruelty  and  desertion.  What  force  and  effect 
will  be  attributed  to  a  decree  of  divorce,  rendered  in  a  court  of  a 
sister  state,  where  the  jurisdiction  of  the  court  rests  solely  upon  the 
domicile  of  the  complainant,  and  where  the  defendant,  being  a  non- 
resident, is  brought  into  court  by  publication  and  the  service  of 
notice  outside  the  jurisdiction,  is  a  question  of  first  impression  in 
this  court.  It  will  not  be  denied  that  the  preservation  of  good 
morals,  and  a  proper  regard  for  social  relations,  make  it  desirable 
that  such  a  decree  should  be  considered  valid,  not  only  in  the  state 
where  it  is  pronounced,  but  in  every  other  jurisdiction,  provided  the 
grounds  upon  which  it  is  based  are  recognized  in  such  jurisdiction 
as  justifying  the  decree.  By  it  the  matrimonial  relation  of  the 
husband  and  wife  is  terminated  in  the  state  in  which  it  is  rendered. 
Within  the  boundaries  of  that  state  a  marriage  afterwards  contracted 
by  either  of  the  parties  with  a  third  person  is  entirely  valid.  So,  too, 
se.xual  relations  between  the  former  husband  and  wife,  within  that 
jurisdiction,  subsequent  to  the  entry  of  the  decree,  are  illicit,  unless 
sanctioned  by  a  new  marriage.  But,  if  the  decree  is  without  extra- 
territorial force,  the  entire  status  of  both  parties  is  reversed  as  soon 
as  they  pass  beyond  the  limits  of  that  state.  A  subsequent  marriage 
to  a  third  person  within  that  state  then  becomes  void,  and  the  rela- 
tions of  the  parties  to  it  become  adulterous;  while  sexual  relations 
between  the  parties  to  the  decree,  which  are  meretricious  if  indulged 
in  within  that  state,  become  matrimonial  again  when  indulged  in 
without  its  borders.  A  condition  of  the  law  which  makes  the  inter- 
course of  a  man  and  woman  either  legitimate  or  adulterous,  as  they 
happen  to  be  within  the  limits  of  one  state  or  another,  is  not  to  be 
tolerated  any  further  than  is  plainly  required  by  public  policy. 

That  the  public  policy  of  New  Jersey  does  not  require  that  recog- 
nition should  be  refused  to  a  decree  of  divorce,  rendered  by  a  court 


JURISDICTION.  259 

of  a  sister  state,  because  the  defendant  had  her  domicile  in  another 
state,  and  wa;  not  within  the  jurisdiction  of  that  court,  seems  to  me 
plain.  State  policy,  when  determined  by  the  legislature,  controls  the 
judicial  branch  of  the  government;  and  the  legislature  of  New  Jersey, 
by  vesting  in  our  court  of  chancery  sole  jurisdiction  over  the  subject 
of  divorce,  and  then  authorizing  it  to  render  decrees  divorcing,  a 
vinculo^  resident  complainants  from  nonresident  defendants,  after 
obtaining  jurisdiction  over  the  latter  by  publication,  and  notice 
served  out  of  the  state  upon,  or  mailed  to  the  post-office  address  of, 
the  latter,  has,  as  it  seems  to  me,  declared  what  our  policy  in  this 
regard  shall  be.  That  it  was  intended  by  the  legislature  that  decrees 
of  divorce  so  rendered  should  be  valid  in  every  jurisdiction,  so  far  as 
it  had  the  power  to  make  them  so,  goes  without  saying;  and  it  can- 
not be  conceived  that  it  was  intended  that  we  should  refuse  to  accord 
to  the  decrees  rendered  in  the  courts  of  our  sister  states  against  non- 
resident defendants,  who  have  not  submitted  themselves  to  the  jur- 
isdiction of  such  courts,  the  efficacy  we  claim  for  our  own,  when 
liable  to  the  same  objection. 

As  has  been  heretofore  stated,  the  question  before  us  has  never 
been  determined  in  this  court.  It,  however,  received  consideration 
in  Doughty  v.  Doughty,  28  N.  J.  Eq.  581,  although  the  case  was 
decided  upon  another  ground.  In  that  case  Beasley,  C.  J.,  deliver- 
ing the  opinion  of  the  court,  says  :  "A  judgment  of  divorce,  resting; 
even  on  such  a  contracted  foundation  as  the  domicile  of  one  of  the 
parties  alone,  bears  with  it,  into  other  jurisdictions,  a  title  to  respect, 
and  in  some  cases  a  claim  to  voluntary  adoption.  In  such  instances, 
I  regard  the  question  whether  the  judgment  shall  be  extraterritorially 
enforced  to  be  one  resting  entirely  on  the  consideration  that,  in  a 
matter  of  unusual  interest  of  this  nature,  an  obligation  rests  upon 
every  government  to  carry  into  effect,  as  far  as  is  reasonably  practic- 
able, and  as  may  be  consistent  with  its  own  policy,  all  foreign  judg- 
ments. But  an  appeal  of  this  kind  to  interstate  comity  should,  I 
think,  never  prevail,  when  the  judgment  sought  to  be  accredited  has 
been  rendered  in  violation  of  that  fundamental  axiom  of  justice  that 
the  parties,  before  their  rights  are  adjudged,  shall  have  an  opportunity 
of  being  heard.  A  judgment  of  divorce  proceeding  from  a  jurisdic- 
tion founded  on  domicile  would  not  contravene  essential  rules  of 
natural  justice,  if  actual  notice  to  appear  had  been  served  on  the 
defendant  residing  abroad.  It  is  true  that  a  notice  so  served  on  a 
litigant  out  of  the  jurisdiction  in  which  a  suit  is  pending  may  add 
nothing  to  the  judicial  right  to  take  cognizance  over  the  cause,  but, 
nevertheless,  it  may  impart  a  quality  to  the  resulting  judgment  that 
will  '■•^rvp  ns  a  credential   to  it   in   a  foreign  jurisdiction."     There  is 


26o  DIVORCE    AND    SEPARATION. 

much  contrariety  of  opinion  upon  the  question  in  the  courts  of  the 
\arious  states,  but  the  weight  oi  authority  seems  to  support  the  view 
expressed  in  Doughty  v.  Doughty  to  this  extent,  at  leasf  that  inter- 
state comity  requires  that  a  decree  of  divorce  pronounced  by  a  court 
of  the  state  in  which  the  complainant  is  domiciled,  and  which  has 
jurisdiction  of  the  subject-matter  of  the  suit,  shall,  in  the  absence 
of  fraud,  be  given  full  force  and  effect  within  the  jurisdiction  of  a 
sister  state,  notwithstanding  that  the  defendant  does  not  reside 
within  the  jurisdiction  of  the  court  which  pronounced  the  decree, 
and  has  not  been  served  with  process  therein;  provided,  that  a  sub- 
stituted service  has  been  made  in  accordance  with  the  provisions  of 
the  statute  of  that  state,  and  that  actual  notice  of  the  pendency  of 
the  suit  has  been  given  to  the  defendant,  and  a  reasonable  oppor- 
tunity afforded  to  put  in  a  defense  thereto;  and  provided,  further, 
that  the  ground  upon  which  the  decree  rests  is  one  which  the  public 
policy  of  the  state  in  which  it  is  sought  to  be  enforced  recognizes  as 
a  sufficient  cause  for  divorce.  That  view  commends  itself  to  us,  and 
we  think  that,  subject  to  the  limitations  mentioned,  the  courts  of 
New  Jersey  should,  as  a  matter  of  interstate  comity,  recognize  as 
valid  a  decree  of  divorce  rendered  by  the  court  of  a  sister  state 
against  a  resident  of  this  state  who  has  not  been  served  with  process. 

In  the  case  before  us,  the  court  pronouncing  the  decree  which  has 
been  pleaded  in  bar  of  the  relief  sought  by  the  complainant  was  a 
court  of  the  domicile  of  the  present  defendant.  It  had  jurisdiction 
of  the  subject-matter  of  the  suit.  There  was  a  substituted  service 
of  process  upon  the  defendant  therein  (the  present  complainant)  by 
publication,  in  accordance  with  the  provisions  of  the  Utah  statute. 
Actual  notice  of  the  pendency  of  the  suit  was  given  to  her  in  time  to 
have  enabled  her  to  make  defense  thereto,  if  she  had  desired  to  do 
so.  There  is  not  even  a  suggestion  that  the  decree  is  tainted  by 
fraud,  and  one  of  the  grounds  upon  which  it  rests,  namely,  desertion, 
is  recognized  by  the  laws  of  this  state  as  justifying  the  dissolution 
of  the  marriage  relation.  The  decree  appealed  from  should  be 
affirmed.* 

Magie,  C.  J.,  dissenting.' 


'Accord,  with  a  general  review  of  both  sides  of  the  controversy,  Dunham  v. 
Dunham,  162  111.  589. 

'  In  the  course  of  his  dissenting  opinion  Chief  Justice  Magie  says:  "  Begin- 
ning with  the  masterly  discussion  of  the  subject  by  Judge  Folger,  in  People  v. 
Baker,  76  N.  Y.  7S,  the  Court  of  Appeals  of  New  York,  in  many  successive 
cases,  have  maintained  the  doctrine  I  contend  for." 


JURISDICTION.  261 

PEOPLE  V.  BAKER. 
76  N.  Y.  78. —  1879. 

The  indictment  charged,  and  the  evidence  on  the  part  of  the 
prosecution  tended  to  show,  that  in  the  year  1871  defendant  in  error 
was  married  to  one  SaUie  West,  in  the  state  of  Ohio,  and  that  in 
November,  1874,  while  she  was  still  living,  he  married  one  Eunice 
Nelson,  at  Auburn,  in  this  state. 

The  defendant  in  error  offered  in  evidence  an  exemplified  copy  of 
the  record  of  a  judgment  in  the  Court  of  Common  Pleas,  of  the 
county  of  Seneca,  state  of  Ohio,  in  an  action  by  said  Sallie  against 
him  for  divorce.  The  record  showed  proof  of  service  of  process  on 
defendant  by  publication;  there  was  no  personal  appearance  by  him. 
The  judgment  purported  to  dissolve  the  marriage,  on  the  ground  of 
"gross  neglect  of  duty,"  on  his  part.  The  statute  of  the  state  of 
Ohio  was  also  offered  in  evidence,  by  which  it  appeared  that  the 
proceedings  in  said  action  were  regular  and  sufficient,  and  that  the 
judgment  was  valid  and  binding  under  the  laws  of  that  state.  Said 
evidence  was  objected  to  on  the  part  of  the  people,  upon  the  ground 
that  that  court  had  no  jurisdiction  over  the  defendant  or  the  subject- 
matter.  The  court  held  that  the  evidence  was  incompetent  for  any 
purpose  save  as  showing  the  intent  of  the  defendant,  and  received 
the  evidence  for  that  purpose  only,  to  which  his  counsel  duly  excepted. 
The  further  material  facts  appear  in  the  opinion. 

FoLGER,  J.  As  we  look  at  this  case,  it  presents  this  question: 
Can  a  court,  in  another  state,  adjudge  to  be  dissolved  and  at  an  end 
the  matrimonial  relation  of  a  citizen  of  this  state,  domiciled  and 
actually  abiding  here  throughout  the  pendency  of  the  judicial  proceed- 
ings there,  without  a  voluntary  appearance  by  him  therein,  and  with 
no  actual  notice  to  him  thereof,  and  without  personal  service  of 
process  on  him  in  that  state. 

We  assume,  in  putting  this  proposition,  that  the  defendant  in  error 
was  in  the  situation  therein  stated.  We  think  that  it  may  properly 
be  thus  assumed.  It  is  true,  that  the  first  which  is  disclosed  of  the 
defendant  in  error,  by  the  error-book,  shows  him  in  another  state, 
in  the  act  of  marriage  with  Sallie  West,  the  other  party  in  the  judi- 
cial proceedings  there  held.  It  does  not  appear  where  his  domicile 
then  was,  nor  where  it  had  been.  After  the  marriage,  however,  the 
persons  then  married  resided  at  Rochester,  in  this  state,  at  a  time 
prior  to  the  commencement  of  those  judicial  proceedings,  and  he 
continued  to  reside  in  that  city  until  in  1875,  and  after  the  final 
judgment  therein  was  rendered.     We  look  in  vain  in  the  error-book 


262  DIVORCE    AND    StPAKATlUN. 

for  any  exception,  proposition  or  suggestion  which  presents  or  indi- 
cates that  the  case  was  tried  at  the  sessions,  upon  the  theory  or 
contention  that  the  defendant  in  error  was  domiciled  in  Ohio,  or 
temporarily  abiding  there,  at  any  time  during  the  pendency  of  the 
judicial  proceedings  in  that  state. 

We  come  back  then  to  the  question  we  have  above  stated.  We 
are  ready  to  say,  that  as  the  law  of  this  state  has  been  declared  by 
its  courts,  that  question  must  be  answered  in  the  negative.  The 
principle  declared  in  the  opinions  has  been  uniform.  Such  is  the 
utterance  in  Borden  v.  Fitch,  15  J.  R.  121;  Bradshaw  v.  Heath,  13 
Wend.  407;  Vischer  v.  Vischer,  12  Barb.  640;  Kerr  v.  Kerr,  41  N. 
Y.  272;  Hoffman  v.  Hoffman,  46  id.  30.  Nor  does  it  avail  against 
them  to  say,  that  the  facts  of  those  cases  do  not  quadrate  exactly 
with  those  of  the  case  before  us.  The  utterances,  which  we  speak 
of  were  not  inconsiderate  expressions,  nor  dicta  merely.  They  were 
considerate  steps  in  the  reasoning,  leading  to  the  solemn  conclusion 
of  the  court.  .\nd  as  touching  the  question  in  its  general  relations, 
we  may  cite  Ki/burn  v.  Woodworth,  5  J.  R.  37;  Shiimivay  v.  Stillman 
4  Cow.  292;  s.  c,  6  Wend.  447;  and  Ferguson  v.  Crawford,  70 
N.  Y.  253,  where  the  whole  subject  is  elaborately  considered.  We 
know  of  no  case  in  our  courts  which  has  questioned  the  princi- 
ple declared  in  these  authorities.  Kinnierv.  Kinnier,  45  N.  Y.  535 
—  sometimes  claimed  to  be  a  departure  —  does  not.  It  is  recognized 
there  that  to  make  valid  in  this  state  a  judgment  of  divorce  ren- 
dered by  a  court  of  another  state,  that  court  must  have  "the  parties 
within  its  jurisdiction,"  must  "have  jurisdiction  of  the  subject- 
matter  and  of  the  parties,"  who  "  must  be  within  the  jurisdiction  of 
the  court."  Hu?itv.  Hunt,  72  N.  Y.  217,  does  not.  That  case  was 
close.  It  went  upon  the  ground,  built  up  with  elaboration,  that  both 
parties  to  the  judgment  were  domiciled  in  Louisiana  when  the 
judicial  proceedings  were  there  begun  and  continued  and  the  judg- 
ment was  rendered,  and  were  subject  to  its  laws,  including  those  for 
the  substituted  service  of  process.  We  meant  to  keep  the  reach  of 
our  judgment  within  the  bounds  fixed  by  the  facts  in  that  case. 

We  must  and  will  abide  by  the  law  of  this  state,  as  thus  declared, 
unless  the  adjudications  in  which  it  has  been  set  forth  have  been 
authoritatively  overruled  in  that  regard.  As  this  is  a  question 
of  Federal  cognizance,  we  ought  to  enquire  whether  the  national 
judiciary  has  declared  anything  inconsistent  therewith.  Cheever  v. 
Wilson,  9  Wall.  108,  is  cited.  Clearly  that  case  is  not  applicable. 
There  both  of  the  parties  to  the  judgment  made  a  voluntary  appear- 
ance, and  the  divorce  court  had  jurisdiction  of  their  persons,  as  it 
had  of  the  subject-matter.     "It  had  jurisdiction  of  the  parties,  and 


JURISDICTION.  263 

the  subject-matter,"  says  the  opinion  in  the  case  cited.  It  had  juris- 
diction of  the  plaintiff  in  the  divorce  proceedings,  by  her  voluntary 
appearance  in  court,  as  a  petitioner,  and  showing  a  bona  fide  residence 
in  that  state,  in  the  way  fixed  therefor  by  its  statute  law.  It  had 
jurisdiction  of  the  person  of  the  defendant,  by  his  voluntary  appear- 
ance in  the  court,  and  putting  in  a  sworn  answer  to  the  petition. 
The  dictum  in  the  case  of  Pennoyer  v.  Neff,  95  U.  S.  714,  even  had 
It  the  force  of  a  judgment,  does  not  go  to  the  extent  needed  to 
overrule  these  decisions  in  our  state.  It  is  there  held,  that  to  war- 
rant a  judgment  in  personam^  there  must  be  personal  service  of 
process,  or  assent  in  advance  to  a  service  otherwise.  It  is  also  said 
that  a  state  may  authorize  judicial  proceedings  to  determine  the 
status  of  one  of  its  own  citizens  towards  a  nonresident,  which  will  be 
binding  within  the  state,  though  had  without  personal  service  of 
process  or  appearance.  It  is  not  said,  much  less  is  it  authoritatively 
decided,  that  a  judgment  thus  got  may  do  more  than  establish  the 
status  of  the  parties  to  it,  within  the  state  in  which  the  judgment  is 
rendered.  The  case  just  cited  is  the  latest  annunciation  known  to 
us  of  the  Supreme  Court  of  the  United  States.  It  does  not  overrule 
the  declarations  of  our  own  courts.  It  rather  sustains  them.  We 
must  and  do  concede,  that  a  state  may  adjudge  the  status  of  its 
citizen  towards  a  nonresident;  and  may  authorize  to  that  end  such 
judicial  proceedings  as  it  sees  fit;  and  that  other  states  must  acqui- 
esce, so  long  as  the  operation  of  the  judgment  is  kept  within  its  own 
confines.  But  that  judgment  cannot  push  its  effect  over  the  borders 
of  another  state,  to  the  subversion  of  its  laws  and  the  defeat  of  its 
policy;  nor  seek  across  its  bounds  the  person  of  one  of  its  citizens, 
and  fix  upon  him  a  status,  against  his  will  and  without  his  consent, 
and  in  hostility  to  the  laws  of  the  sovereignty  of  his  allegiance. 

It  is  said  that  a  judicial  proceeding  to  touch  the  matrimonial 
relation  of  a  citizen  of  a  state,  whether  the  other  party  to  that  rela- 
tion is  or  is  not  also  a  citizen,  is  a  proceeding  in  rem,  or  as  it  is  more 
gingerly  put,  quasi  in  rem.  But  it  was  never  heard  that  the  courts 
of  one  state  can  affect  in  another  state  the  rem  there,  not  subjected 
to  their  process,  and  over  the  person  of  the  owner  of  which  no  juris- 
diction has  been  got.  Now,  if  the  matrimonial  relation  of  the  one 
party  is  the  res  in  one  state,  is  not  the  matrimonial  relation  of  the 
other  party  a  r(?j- in  another  state?  Take  the  case  of  a  trust,  the 
subject  of  which  is  lands  in  several  states,  the  trustees  all  living  in 
one  state.  Doubtless  the  courts  of  a  state  in  which  the  trustees  did 
not  live  and  never  went,  but  in  which  were  some  of  the  trust  lands, 
could  proceed  in  rem  and  render  a  judgment  without  personal  service 
of  process,  which  would  determine  there  the  invalidity  of  the  trust 


264  DIVORCE   AND    SEPARATION. 

and  affect  the  possession  and  title  of  the  lands  within  the  jurisdiction 
of  those  courts;  but  it  would  not  be  contended  that  the  judgment 
would  operate  upon  the  trustees  or  upon  the  trust  lands,  in  other 
states,  so  as  to  affect  the  title,  or  the  possession,  in  those  states.     It 
could  operate  only  on  the  retn  upon  which  the  process  of  those  courts 
could  lay  hold.     And  why  is  not  the  matrimonial  relation  of  a  citizen 
of  New  York,  as  it  exists  in  that  state,  if  it  is  a  res^  as  much  exempt 
from  the  effect  of  such  a  judgment  as  lands  in  that  state,  and  the 
trust  under  which  they  may  be  held  ?     Is  not  any  other  relation  of 
mankind  as  much  a  res  for  the  touch  and  adjudication  of  courts  as 
that  of  a  husband  and  wife?     Take  the  relation  of  a  minor  orphan 
to   its  guardian,  or  to  those   entitled   by  law  to  be   its  guardians. 
That  is  a  status^  in  kind  as  the  matrimonial  relation.     The  courts  of 
one  state  may  act  and  appoint  a  guardian  for  such  a  child,  if  it  is 
within    their    territorial    jurisdiction,    and    remains    there;    but    the 
appointment  is  not  operative /^r  5^  in  another  state,  into  which  the 
child  goes.      {IVoodivorth  v.  Spring,  4  Allen,  321.)     It  is,  of  course, 
to  be  granted,  as  before  said,  as  a  general  proposition,  to  which  it  is 
not  now  needful  to  suggest  limitations,  that  each  state  may  declare 
and  adjudge  the  status  of  its  own  citizens.     And,  hence,  if  one  party 
to  a  proceeding  is  domiciled  in  a  state,  the  status  of  that  party,  as 
affected  by  the  matrimonial  relation,  may  be  adjudged  upon  and  con- 
firmed or  changed,  in  accordance  with  the  laws  of  that  state.     But 
has  not  the  3tate  in  which  the  other  party  named  in  the  proceeding 
is  domiciled,   also  the  equal  right  to  determine  his  status,  as  thus 
affected,  and  to  declare  by  law  what  may  change  it,  and  what  shall 
not  change  it  ?     If  one  state  may  have  its  policy  and  enforce  it,  on 
the  subject  of  marriage  and  divorce,  another  may.     And  which  shall 
have  its  policy  prevail  within  its  own  borders,  or  shall  yield  to  that 
of  another,  is  not  to  be  determined  by  the  facility  of  the  judicial 
proceedings  of  either,  or  the  greater  speed  in  appealing  to  them. 
That  there  is  great  diversity  in  policy  is  very  notable.     It  does  not, 
however,  seem  to  tend  to  a  state  of  harmonious  and  reliable  uniform- 
ity, to  set  up  the  rule  that  the  state  in  which  the  courts  first  act  shall 
extend  its  laws  and  policy  beyond  its  borders,  and  bind  or  loose  the 
citizens  of  other  sovereignties.     It  will  prove  awkward,  and  worse 
than  that,  afflictive  and  demoralizing,  for  a  man  to  be  a  husband  in 
name  and  under  disabilities  or  ties  in   one  jurisdiction,  and   single 
and    marriageable  in  another.      Yet  it  is  only  in  degree  that  it  is 
harder  than  the  results  of  other  conflicts  in  laws.     It  is  more  sharply 
presented  to  us,  because  tenderer,  more  sacred,  more  lasting  rela- 
tions, of  greater  consequence,  are  involved,  and  because  the  occa- 
sions calling  attention  to  the  conflict  have,  of  late  years,  become  so 


JURISDICTION.  265 

frequent.  Whatever  we  may  hold  in  the  United  States,  it  will  not 
change  results  in  foreign  countries.  And  in  seeking  for  a  rule  which 
shall  be  of  itself,  from  its  own  reason,  correct,  we  ought  to  find  or 
form  one,  if  may  be,  that  is  generally  applicable.  However  submis- 
sively we  must  concede  to  every  sovereignty  the  right  to  maintain 
such  degree  of  strictness  in  the  domestic  relations  as  it  sees  fit 
within  Its  own  territory,  there  is  no  principle  of  comity  which 
demands  that  another  sovereignty  shall  permit  the  status  of  its 
citizens  to  be  affected  thereby,  when  contrary  to  its  own  public 
policy,  or  its  standard  of  public  morals. 

We  are  not,  therefore,  satisfied  with  the  doctrine  that  rests  the 
validity  of  such  judicial  proceedings  upon  the  right  and  sovereign 
power  of  a  state  to  determine  the  status  of  its  own  citizens,  and 
because  it  may  not  otherwise  effectually  establish  it,  asserts  the 
power  to  adjudge  upon  important  rights,  without  hearing  the  party 
to  be  affected,  and  without  giving  him  the  notice  which  is  required 
by  the  principles  of  natural  justice,  he  being  all  the  while  beyond 
Its  jurisdiction. 

Besides,  a  just  consideration  of  what  is  a  proceeding  in  rem,  and 
of  the  effect  of  a  judgment  therein,  shows  that  the  latter  does  not 
reach  so  far  as  is  contended  for  it.  It  is  a  proceeding  in  rem  merely. 
The  judgment  therein  is  not  usually  a  ground  of  action  in  personam 
in  another  jurisdiction,  for,  as  a  proceeding  in  personam,  or  as  giving 
foundation  for  one,  the  court  gets  no  jurisdiction.  {^Pauling  v. 
Bird's  Exrs.,  13  J.  R.  192.)  How  then,  upon  such  basis,  can  the 
judgment  be  brought  here  and  made  the  foundation  of  an  action 
against  one  personally,  and  if  not  a  means  of  offense  /;/  personam, 
how  a  means  of  defence  to  the  person,  when  sought  to  be  held  for 
personal  acts,  in  violation  of  the  laws  of  his  allegiance  ? 

The  consequences  of  such  want  of  harmony  in  polity  and  proceed- 
ing, we  have  adverted  to.  The  extent  of  them  ought  to  bring  in 
some  legislative  remedy.  It  is  not  for  the  courts  to  disregard  general 
and  essential  principles,  so  as  to  give  palliation.  Indeed,  it  is  bet- 
ter, by  an  adherence  to  the  policy  and  law  of  our  own  jurisdiction, 
to  make  the  clash  the  more  and  the  earlier  known  and  felt,  so  that 
the  sooner  may  there  be  an  authoritive  determination  of  the  confl  ct. 

It  is  urged  upon  us  that  our  state  cannot  with  good  grace  hold 
invalid  this  judgment  of  a  court  of  Ohio,  when  our  own  Code  pro- 
vided, at  the  time  of  the  rendition  of  it,  for  the  giving  of  judg.iij'.U 
of  divorce  against  a  nonresident,  by  like  substituted  service.  It  i> 
true  that,  until  the  new  Code  of  Procedure,  such  had  been  th  '  ca>e. 
(2  R.  L.  197,  sec.  i;  i  Id.  48),  sec.  9;  2  R.  S.  144.  sec.  38;  Id.  185, 
Id.  187,  sec.  134;  La.vs  of  1862,  ciiap.  246,  s^c,  i  ;  O^d  Ctxlc,  sec   i.'js;- 


266  DIVURCK    AND    SEPARATION. 

but  see  New  Code,  sub.  438,  sec.  4.)  This  is  but  lo  say  that,  on  the 
principle  of  the  comity  of  states,  we  should  give  effect  to  this 
judgment.  But  this  principle  is  not  applied  when  the  laws  and 
judicial  acts  of  another  state  are  contrary  to  our  own  public  policy, 
or  to  abstract  justice  or  pure  morals.  The  policy  of  this  state 
always  has  been  that  there  may  of  right  be  but  one  sufficient  cause 
for  a  divorce  a  vinculo;  and  that  policy  has  been  upheld,  with 
strenuous  effort,  against  persistent  struggles  of  individuals  to  vitiate 
and  change  it.  And  though  it  is  lightly,  we  must  think,  sometimes 
said  that  it  is  but  a  technicality,  that  there  must  be  personal 
notice  and  chance  to  be  heard,  to  make  a  valid  judgment  affecting 
personal  rights  and  conditions,  we  cannot  but  estimate  the  principle 
as  of  too  fundamental  and  of  too  grave  importance  not  to  be  shielded 
by  the  judiciary,  as  often  as  it  is  in  peril. 

We  are  aware  that  there  are  decisions  of  the  courts  of  sister  states 
to  the  contrary  of  the  authorities  in  this  state.  They  are  ably 
expressed;  they  are  honestly  conceived.  They  are,  however,  on 
one  side  of  a  judicial  controversy  the  dividing  line  whereof  is  well 
marked,  and  is  not  lately  drawn.  It  would  not  be  profitable  to 
review  and  discuss  them.  They  are  prevalent  within  the  jurisdictions 
in  which  they  have  been  uttered,  and  we  cannot  expect  to  change 
them  there.  They  are  in  opposition  to  the  judgments  of  our  own 
courts,  which  we  must  respect,  and  with  which  our  reason  accords. 
It  remains  for  the  Supreme  Court  of  the  United  States,  as  the  final 
arbiter,  to  determine  how  far  a  judgment  rendered  in  such  a  case, 
upon  such  substituted  service  of  process,  shall  be  operative,  without 
the  territorial  jurisdiction  of  the  tribunal  giving  it. 

There  is  an  exception  still  to  be  noticed.  The  court,  in  charging 
the  jury,  stated  to  them  that  if  the  divorce  had  been  obtained  under 
the  laws  of  this  state,  though  the  defendant  in  error  would  not  have 
been  guilty  of  the  crime  of  bigamy,  yet  he  would  have  been  guilty 
of  a  misdemeanor,  and  that  that  was  a  pertinent  consideration  for 
them.  We  do  not  understand  that  this  was  meant  for  an  instruction 
that  they  could  convict  him  of  the  misdemeanor,  if  they  did  not  find 
that  he  was  guilty  of  the  higher  offence.  The  charge  is  to  be  taken 
in  connection  with  the  reception  in  evidence  of  the  Ohio  record,  on 
the  question  of  his  intent.  As  bearing  merely  upon  his  guilty  or 
innocent  purpose,  it  was  not  inappropriate  for  the  jury  to  consider  that, 
though  a  man  from  whom  his  wife  has  been  divorced  a  vinculo,  in 
this  state  may  not,  by  marrying  again,  incur  the  penalties  for  bigamy. 
he  does  violate  the  decree  which  forbids  to  him  another  marriage, 
so  long  as  she  lives. 


JURISDICTION.  267 

We  are  of  the  opinion  that  the  judgment  of  the  General  Term 
should  be  reversed,  and  that  of  the  Sessions  be  affirmed. 

All  concur,  except  Church,  Ch.  J.,  dissenting.  Judgment 
accordingly.' 

In  Re  ELLIS'S  ESTATE. 

55   Minn.  401. —  1893. 

GiLFiLLAN,  C.  J.  Appeal  from  an  order  appointing  an  adminis- 
tratrix. Stating  the  history  of  the  matters  involved  in  chronologicai 
order,  in  1869  Matthew  Ellis  and  Rachel  Cottrell,  then  residents  in 
Wisconsin,  intermarried  in  that  state,  and  resided  therein  —  the  lat- 
ter part  of  the  time  at  Hudson  —  from  the  time  of  their  marriage 
till  October,  1883,  when  they  came  to  St,  Paul,  Minnesota.  Febru- 
ary 29,  1884,  she  commenced,  by  proper  personal  service  of  summons, 
an  action  against  him  for  divorce  in  the  Circuit  Court  for  the  county 
of  St.  Croix  (in  which  Hudson  is  situated),  in  said  State.  Her  com- 
plaint was  sworn  to  by  her,  and  it  alleged,  among  other  things,  that 
she  then  was,  and  for  more  than  three  years  last  past  had  been,  a 
resident  of  said  county  and  state,  and  that  for  more  than  a  year 
prior  to  bringing  the  action  the  defendant  had  willfully  deserted  and 
refused  to  live  and  cohabit  with  her;  and  it  demanded  judgment 
dissolving  the  marriage,  and  requiring  the  defendant  to  pay  her  the 
sum  of  $8,000  alimony.  The  defendant  filed  an  answer  not  raising 
any  substantial  issues,  and  the  parties  made  and  filed  a  stipulation 
agreeing  upon  the  alimony  at  $6,150  and  a  horse,  carriage,  robes, 
etc.,  and  ail  the  defendant's  household  goods,  except  his  library.  The 
answer  and  stipulation  suggest  an  agreement  between  the  parties  for 
a  divorce  —  a  suggestion  which  ought  to  have  caused  the  court,  and 
we  must  assume  that  it  did,  to  require  strict  and  ample  proofs  of 
the  facts  showing  a  cause  of  action,  and  which  would  have  been  in- 
fluential upon  an  application  to  vacate  the  judgment  rendered  on 
the  ground  of  collusion  and  fraud  upon  the  court.  But  that  did  not 
go  to  the  jurisdiction  of  the  court  over  the  case.  A  reason  for  de- 
ciding against  the  plaintiff,  or  a  fraud  upon  the  court  as  to  the  judg- 
ment to  be  rendered,  or  the  character  of  the  motive  that  induced 
the  bringing  the  action,  does  not  affect  the  jurisdiction.  March  27, 
1884,  judgment  in  that  action  was  rendered,  dissolving  the  marriage 
between  the  parties,  and  allowing  the  plaintiff  therein  the  alimony 
stipulated;  and  that  alimony  was  paid.     September  2,  1886,  Matthew 

'Further,  upon  the  attitude  of  the  New  York  courts  toward  foreign  divorces, 
see  particularly  In  re  Kimball,  155  N.  Y.  62;  Atherton  v.  Atherton,  155  N.  Y. 
I2q  (reversed  in  181  U.  S.  155);  iMcGown  v.  McGoiim,  19  App.  Div.  368  (affirmed 
on  opinion  below,  164  N.  Y.  558);  I/amilton  v.  Hamilton,  26  Misc.  336;  and 
Hammond  v.  Hammond,  103  App.  Div.  437. 


268  DIVORCE   AND   SEPARATION. 

Ellis  and  Flora  Wilson  inf;ermarried,  and  they  lived  together  as  hus- 
band and  wife  until  December  7,  1892,  when  he  died  in  St.  Paul, 
Ramsey  county,  in  this  state. 

Flora  Ellis,  the  second  wife,  filed  a  petition  in  the  Probate  Court 
of  said  county,  stating  the  necessary  jurisdictional  facts,  alleging 
that  Matthew  Ellis  died  intestate,  and  that  she  was  his  widow,  and 
asking  to  be  appointed  his  administratrix.  On  the  day  appointed 
for  the  hearing  Rachel  Ellis  appeared,  denied  that  Flora  was  the 
widow,  alleging  that  she  was  the  widow,  and  asked  that  she  be 
appointed  administratrix.  At  the  same  time  appeared  a  brother 
and  sister  of  the  deceased,  representing  that  the  deceased  had 
made  a  will,  still  in  force,  and  asking  the  court  to  make  the  proper 
order  or  decree  in  the  premises.  The  Probate  Court  appointed 
Flora  administratrix,  and  on  an  appeal  to  the  District  Court,  in 
which  the  court  heard  all  the  parties,  that  court  affirmed  the  deci- 
sion of  the  Probate  Court. 

The  principal  question  in  the  case  was  presented  by  the  appellant's 
offer  to  prove,  and  the  ruling  of  the  court  excluding  the  evidence,  that 
at  the  time  of  bringing  the  action  in  Wisconsin  and  of  the  divorce  de- 
cree neither  of  the  parties  to  it  was  a  resident  of  that  state,  but  that 
both  were  residents  of  this  state.  It  is  claimed  for  the  evidence 
that,  if  admitted,  it  would  have  shown  that  the  Wisconsin  court  had 
no  jurisdiction  of  the  subject-matter  of  the  action,  to  wit,  the  mari- 
tal relation  between  the  parties;  that,  consequently,  the  decree  was 
void;  Rachel  remained  the  wife,  and  is  now  the  widow,  of  Matthew; 
and  that  the  marriage  with  Flora  was  void. 

The  question  thus  raised  is  of  great  importance,  and  difficult  to 
satisfactorily  determine.  It  is  an  undisputable  general  proposition 
that  the  tribunals  of  a  country  have  no  jurisdiction  over  a  cause  of 
divorce,  wherever  the  offence  may  have  occurred,  if  neither  of  the  par- 
ties has  an  actual,  <^^;/«y?«V  domicile  within  its  territory.  This  neces- 
sarily results  from  the  right  of  every  nation  or  state  to  determine 
the  status  of  its  own  domiciled  citizens  or  subjects  without  interfer- 
ence of  foreign  tribunals  in  a  matter  with  which  they  have  no  con- 
cern. But  when  in  the  court  of  a  state  an  action  for  divorce  is 
brought  and  a  decree  of  divorce  rendered,  the  court  is  presumed  to 
have  determined  the  facts  essential  to  its  jurisdiction,  among  them 
the  residence  of  the  parties. 

When,  as  between  whom,  and  to  what  extent  is  such  determina- 
tion binding  in  the  state  in  which  the  parties  are  in  fact  residents? 
The  cases  in  which  the  question  may  arise  may  be  divided  into  three 
classes: 


JURISDICTION.  369 

First,  in  proceedings  between  the  state  of  the  parties'  actual  resi- 
dence and  one  of  the  parties; 

Second,  in  proceedings  between  the  parties  in  the  state  of  their 
.actual  residence,  where  the  divorce  in  the  other  state  was  procured 
on  the  application  of  one  of  them,  the  other  not  appearing  in  the 
action  to  procure  it; 

Third,  in  proceedings  between  the  parties  when  both  voluntarily 
appeared  in  the  action  in  which  the  divorce  was  granted,  and  con- 
sented to  the  jurisdiction,  or  that  the  court  might  determine  the 
facts  on  which  the  jurisdiction  depended. 

In  the  second  class  of  cases  it  was  settled  that  a  judgment  of  an- 
other state  can  be  assailed  on  the' ground  of  want  of  jurisdiction  in 
the  court  to  render  it;  the  decisions  have  been  practically  uniform 
that  the  party  who  did  not  submit  to  the  jurisdiction  is  not  bound 
by  the  judgment. 

Of  the  decisions  in  cases  coming  under  the  first  class  we  refer  to 
four, —  Hood  V.  State^  56  Ind.  263;  Van  Fossen  v.  State^  37  Ohio  St. 
317;  People  Y.  Dawell,  25  Mich.  247;  and  State  v.  Armington^  25  Minn. 
29, —  all  cases  between  the  state  of  actual  residence  and  one  of  the 
parties.  In  the  first  of  these  the  record  of  the  judgment  showed 
that  neither  of  the  parties  was  a  resident  of  Utah,  where  it  was  ren- 
dered, so  that  the  record  impeached  itself.  It  was,  of  course,  held 
that  the  judgment  was  void.  In  each  of  the  others  it  was  held  that, 
in  order  to  show  want  of  jurisdiction  in  the  court  rendering  the  judg- 
ment, it  might  be  shown  that  neither  of  the  parties  resided  within 
the  state  in  which  it  was  rendered,  and,  that  being  shown,  it  was 
void.  In  the  opinion  in  each  case  language  is  used  apparently  sus- 
taining the  proposition  that  such  would  be  the  rule  however  the 
question  of  the  validity  of  the  judgment  might  arise.  In  People  v. 
Dawell,  Mr.  Justice  Cooley  delivered  the  prevailing  opinion,  Mr. 
Chief  Justice  Chris.tiancy  concurring,  and  Mr.  Justice  Campbell  dis- 
senting. It  was  enough  for  the  purpose  of  that  case  to  decide  whether 
the  judgment  was  valid  as  against  the  state  of  residence.  Whether 
it  was  valid  as  between  the  parties  was  not  before  the  court;  and 
such  was  the  case  in  Hood  v.  State  and  State  v.  Armington.  So 
far  as  the  state  of  residence  is  concerned,  it  must  be  taken  upon  the 
authorities,  and  certainly  in  this  state,  upon  the  Armington  Case, 
that  it  is  not  bound  by  a  judgment  divorcing  two  of  its  resident  citi- 
zens, rendered  by  a  court  of  another  state.  There  are  reasons  why 
it  should  not  be  bound,  however  it  may  be  between  the  parties,  which 
we  will  presently  refer  to. 

It  does  not  follow  that  the  judgment  is  void  in  the  third  class  of 
cases.     A  judgment  operating  on  a  res  may  be  binding  between  the 


2/0  DIVORCE   AND   SEPARATION. 

parties  to  the  action  without  binding-  one  not  a  party,  but  interested 
in  the  res.  In  an  action  for  divorce  the  ns  upon  which  tiie  judg- 
ment operates  is  the  status  of  the  parties.  There  are  three  different 
parties  interested  in  that,  —  the  husband,  the  wife,  and  the  state  of 
their  residence.  This  was  in  the  mind  of  Mr.  Justice  Cooley  in 
writing  the  opinion  in  the  Dmviil  Case.  He  said:  "  But  it  is  said 
if  the  parties  appear  in  the  case  the  question  of  jurisdiction  is  pre- 
cluded. That  might  be  so  if  the  matter  of  divorce  was  one  of  pri- 
vate concern  exclusively."  "  As  the  laws  now  are,  there  are  three 
parties  to  every  divorce  proceeding, —  the  husband,  the  w^fe,  and 
ihe  state;  the  first  two  are  parties  representing  their  respective 
interests  as  individuals;  the  state,  concerned  to  guard  the  morals  of 
its  citizens,  by  taking  care  that  neither  by  collusion  nor  otherwise 
shall  divorce  be  allowed  under  such  circumstances  as  to  reduce  mar- 
riage to  a  mere  temporary  arrangement  of  conscience  or  passion." 
"  Such  being  the  case,  suppose  we  admit  that  the  parties  may  be 
bound  by  their  voluntary  appearance  in  the  foreign  jurisdiction. 
How  does  that  affect  the  present  case?  How,  and  in  what  manner, 
did  the  Indiana  court  obtain  jurisdiction  of  the  third  party  entitled 
to  be  heard  in  this  proceeding;  that  is  to  say,  of  the  state  of  Michi- 
gan? "  This  line  of  reasoning  was  applied  by  the  same  court  in 
Waldo  V .  Waldo,  52  Mich.  94  (17  N.  W.  710).  One  cjuestion  in  that 
case  was  whether  the  plaintiff  was  the  widow  of  Jerome  B.  Waldo, 
just  as  in  this  it  is  whether  Flora  Ellis  is  the  widow  of  Matthew. 
Previous  to  her  marriage  to  Jerome  B.  she  had  been  married  to  one 
Carey,  from  whom  she  had  obtained  a  divorce  in  Indiana,  both  par- 
ties appearing  in  the  action  for  it.  The  court  held  the  judgment 
could  not  be  assailed  by  showing  want  of  residence  in  Indiana  and 
residence  in  Michigan,  saying  in  one  part  of  the  opinion:  "  This 
state  has  never  complained  of  that  judgment,  and  neither  party  has 
objected  to  it."  The  Dawell  Case  was  not  referred  to,  and  we  may, 
from  both  cases,  take  the  rule  in  that  state  to  be  that,  while  the 
state  cannot  be  bound  by  its  resident  citizens  appearing  in  and  con- 
senting to  the  jurisdiction  of  a  court  in  another  state  in  an  action 
for  divorce,  the  parties  may  so  bind  themselves  in  respect  to  their 
individual  interests.  In  Kinnier  v.  Kimiier,  45  N.  Y.  535,  a  private 
action,  it  was  held  that  a  judgment  of  divorce  by  the  court  of  an- 
other state,  both  parties  appearing  in  the  action,  could  not  be 
assailed  on  the  question  of  residence.  In  the  course  of  the  opinion, 
the  court.  Church,  C.  J.,  said:  "  Nor  can  I  assent  to  the  reason 
given  for  allowing  the  husband  to  repudiate  the  binding  force  of  the 
judgment  upon  him,  after  voluntarily  submitting  himself  to  the  juris- 
diction of  the  court,  and  litigating  the  case  upon  its  merits;  "  thus 


JURISDICTION.  271 

recognizing  the  effect  of  the  voluntary  submission  upon  the  parties' 
right  to  question  the  judgment.  Cases  in  Massachusetts,  to  which 
we  are  cited  by  appellants,  are  hardly  of  authority  on  the  point,  be- 
cause the  decisions  were  based  mainly  on  a  statute  of  that  state. 
Ellis  V.  White,  61  Iowa,  644,  (17  N  .W.  28),  has  only  bearing  on  one 
phase  of  this  case.  It  was  there  held  that  a  plaintiff  in  an  action 
for  divorce  and  alimony  cannot  question  the  jurisdiction  of  the  court 
after  accepting  the  benefits  of  the  judgment. 

It  may  seem  anomalous  that  a  judgment  of  divorce  can  be  so  far 
effectual  between  the  parties  as  to  extinguish  all  rights  of  property 
dependent  on  the  marriage  relation,  without  being  effectual  to  pro- 
tect them  from  accountability  to  the  state  for  their  subsequent  acts. 
One  reason  why  they  ought  not  to  be  permitted,  by  going  into  an- 
other state  and  procuring  a  divorce,  to  escape  accountability  to  the 
laws  of  their  state,  is  that  their  act  is  a  fraud  upon  the  state,  and 
an  attempt  to  evade  its  laws,  to  which  it  in  no  wise  consents,  and  it 
may  therefore  complain.  But  the  parties  do  consent,  and  why 
should  they  be  heard  to  complain  of  the  consequences  to  them  of 
what  they  have  done?  Why  should  they  be  permitted  to  escape 
those  consequences  by  saying:  "It  is  true  that  by  false  oath  made 
by  one  of  us,  and  connived  at  by  the  other,  we  committed  a  fraud 
in  the  Wisconsin  court,  and  induced  it  to  take  cognizance  of  the 
case;  but  now  we  ask  to  avoid  its  judgment  by  proof  of  our  fraud 
and  perjury  or  subornation  of  perjury."  Because  we  do  not  think 
it  can  be  done,  the  parties  must,  so  far  as  their  individual  interests 
are  concerned,  abide  by  the  judgment  they  procured  that  court  to 
render;  and,  of  course,  what  will  bind  them  will  bind  those  who 
claim  through  them,  or  either  of  them,  which  is  the  case  with  the 
appellants  other  than  Rachel. 

There  were  other  minor  questions  raised  by  the  assignments  of 
error,  but  we  do  not  see  any  merit  in  any  of  them. 

Order  affirmed. 


STARBUCK  V.   STARBUCK. 

173  N.  Y.  503.  —  1903. 

Haight,  J.  This  action  was  brought  by  the  plaintiff  as  the  widow 
of  William  H.  Starbuck,  deceased,  to  recover  dower  in  the  real  estate 
of  which  he  died  seised.  The  decedent  and  the  plaintiff  were  mar- 
ried in  the  commonwealth  of  Massachusetts  on  the  14th  day  of 
October,  1857,  he  being  a  resident  of  this  state,  where  he  continued 
10  reside  until  his  death,  which  occurred  on  the  29th  day  of  March, 
1896.  In  the  year  1868  the  plaintiff  left  her  husband's  residence 
and    returned    to   her   parents'   home   in   Massachusetts,  taking  her 


272  DIVORCE    AND    SEPARATION. 

daughter  with  her,  where  she  resided  until  after  his  death.  She  then 
removed  to  this  state  and  brought  this  action.  Upon  the  trial  the 
defendants  offered  in  evidence  an  exemplified  record  of  a  decree  of 
divorce  obtained  by  the  plaintiff  from  her  husband  in  the  state  of 
Massachusetts  on  the  4th  day  of  May,  1874,  upon  the  ground  of 
extreme  cruelty.  The  papers  in  that  action  were  served  upon  the 
decedent  personally  in  this  state,  but  he  did  not  appear  in  the  action 
either  personally  or  by  attorney,  and  did  not  submit  himself  to  the 
jurisdiction  of  the  Massachusetts  court.  This  decree  was  excluded 
from  evidence  upon  the  objection  of  the  plaintiff's  attorney,  and 
exceptions  were  taken  to  such  exclusion  by  the  defendants.  After 
the  divorce  Starbuck  contracted  a  marriage  with  the  defendant, 
Matilda  Eliza  Starbuck,  in  the  state  of  Pennsylvania,  and  the  minor 
defendants  are  children  of  that  union.  The  real  estate  in  which  the 
plaintiff  seeks  to  recover  dower  is  all  situated  in  this  state,  and  was 
acquired  by  Starbuck  after  the  divorce. 

We  are  of  the  opinion  that  the  Massachusetts  decree  was  compe- 
tent, and  that  the  defendants  had  the  right  to  have  it  received  in 
evidence.  True,  the  plaintiff  could  not  avail  herself  of  a  void  decree, 
which  she  had  procured  to  be  entered,  any  more  than  she  could  of 
her  own  declarations,  but  it  is  different  with  the  defendants.  They 
have  the  right  to  avail  themselves  of  the  declarations,  acts,  and 
decrees  obtained  by  their  opponent,  and  the  principle  is  well  estab- 
lished that,  where  a  party  has  procured  a  judgment  or  decree  to  be 
entered,  submitting  himself  to  the  jurisdiction  of  the  court,  he  can- 
not thereafter  be  heard  to  question  the  jurisdiction  of  the  court 
which  entered  the  judgment  or  decree.  The  decree,  therefore,  if  it 
had  been  received  in  evidence,  would  have  operated  to  defeat  her 
claim  that  she  is  now  the  widow  of  the  decedent  and  entitled  to 
dower  in  the  real  estate  acquired  by  him  after  the  decree.  We  have 
recently  had  under  consideration  a  similar  question  in  Matter  of 
Swales,  60  App.  Div.  599,  70  N.  Y.  Supp.  220,  afifirmed  upon 
the  opinion  of  the  Appellate  Division,  172  N.  Y.  651,  65  N.  E.  1122. 
In  that  case  Mary  E.  Swales  petitioned  the  Surrogate's  Court  for 
letters  of  administration  upon  the  estate  of  William  H.  Swales, 
deceased,  claiming  to  be  his  widow.  It  appeared  that  they  were 
married  on  the  3d  day  of  May,  1869,  at  Sodus,  in  this  state,  and  that 
in  December,  1873,  they  separated;  that  in  the  year  1883  the  peti- 
tioner obtained  a  decree  of  divorce  from  him  in  the  state  of  Illinois, 
which  purported  to  dissolve  the  marriage  between  the  parties  upon 
grounds  which  are  not  recognized  by  the  laws  of  this  state  as  suffi- 
cient for  that  purpose.  The  summons  or  process  by  which  the 
action  was  commenced  was  served  by  publication  only,  and  the 
decedent  did  not  appear  in  the  action  either  in  person  or  by  counsel. 


JURISDICTION.  273 

After  obtaining  the  divorce,  the  petitioner  married  one  David  Tro- 
bridge,  with  whom  she  has  since  cohabited  and  resided  in  this  state, 
and  by  whom  she  has  a  daughter.  After  the  death  of  Swales  she 
petitioned  for  letters  of  administration,  as  we  have  seen,  claiming  to 
be  his  widow.  In  that  case  Adams,  P.  J.,  in  delivering  the  opinion 
of  the  court,  says:  "We  think  the  case  justifies  the  application  of 
a  *  *  *  principle  which  is  that,  where  a  party  has  invoked  the 
jurisdiction  of  any  court  and  submitted  himself  thereto,  he  cannot 
thereafter  be  heard  to  question  such  jurisdiction." 

In  Matter  of  Morrisson,  52  Hun,  102,  5  N.  Y.  Supp.  90,  the  dece- 
dent's personal  estate  was  claimed  by  the  legal  representatives  of 
her  deceased  husband,  Henry  Feyh.  He  had  previously  obtained  a 
divorce  from  her  in  the  state  of  Ohio  while  she  was  domiciled  in  this 
state.  It  was  claimed  on  behalf  of  the  personal  representatives  of 
Henry  Feyh  that  the  decree  of  the  Ohio  court  was  void  in  this  state. 
It  was  held  that  they  were  not  entitled  to  the  estate.  Van  Brunt, 
P.  J.,  in  delivering  the  opinion  of  the  court,  said:  "Henry  Feyh, 
having  invoked  the  jurisdiction  of  the  court  of  Ohio  and  submitted 
himself  thereto,  cannot  now  be  heard  to  question  such  jurisdiction. 
And  the  claimants  here  occupy  precisely  the  same  position  that 
Feyh  would  have  occupied  had  he  been  living.  This  position  does 
not  rest  upon  the  doctrine  of  estoppel,  as  such  term  is  ordinarily 
used,  but  upon  a  principle  which  has  been  repeatedly  recognized  by 
the  courts,  that  where  a  party  has  gone  into  a  court  and  invoked  its 
jurisdiction,  he  cannot  subsequently  attack  the  decree  of  the  court 
obtained  at  his  instance  because  of  the  want  of  jurisdiction  of  some- 
body else."  This  decision  was  affirmed  in  this  court.  117  N.  Y. 
638,  22  N.  E.  1 130.  See  also  Kinnierv.  Kinnier^  45  N.  Y.  535,  6 
Am.  Rep.  132;  Coddington  v.  Coddingto?t,  10  Abb.  Prac.  450;  Kirrigan 
v.  Kirrigan,  15  N.  J.  Eq,  146;  Hunter  v.  Hunter,  iii  Cal.  261,  43 
Pac.  756,  31  L.  R.  A.  411,  52  Am.  St.  Rep.  180;  Henntt  v.  Northrup, 
75  N.  Y.  506;  Matter  of  Ellis  Estate,  55  Minn.  401,  56  N.  W.  1056, 
23  L.  R.  A.  287,  43  Am.  St.  Rep.  514;  Ellis  v.  White,  61  Iowa,  644, 
17  N.  W.  28;  and  Van  Koughnet  n.  Dennie,  68  Hun,  179,  22  N.  Y. 
Supp.  823. 

There  are  a  number  of  cases  in  which  the  courts  of  this  state  have 
refused  to  recognize  the  validity  of  divorces  obtained  in  other  states, 
upon  grounds  insufficient  for  that  purpose  in  this  state,  when  the 
defendant  resided  here  and  was  not  personally  served  with  process 
and  did  not  appear  in  the  action.  Matter  of  Kimball,  155  N.  Y.  62, 
49  N.  E.  331;  Williams  \.  Williams,  130  N.  Y.  193,  29  N.  E.  98,  14 
L.  R.  A.  220,  27  Am.  St.  Rep.  517;  De  Meli  v.  De  Meli,  120  N.  Y. 
485,  24  N.  E.  996,  17  Am.  St.  Rep  652;  Cross  v.  Cross,  108  N.  Y. 
628;  15  N.  E.  333;  G Dea  v.  O'Dea,  101  N.  Y.  23,  4  N.  E.  no.  But 
[Domestic  Relaiions—  18. 1 


274  DIVORCE   AND   SEPARATION. 

in  none  of  these  cases  did  the  party  procuring  tlie  decree  seek  a 
benefit  by  having  it  lield  invalid.  A  party  cannot  avail  himself  of  a 
defense  or  of  a  right  to  recover  by  means  of  an  invalid  decree  or 
judgment  obtained  by  him;  but  on  the  other  hand,  he  may  not  be 
heard  to  impeach  a  decree  or  judgment  which  he  himself  has  pro- 
cured to  be  entered  in  his  own  favor. 

We  think  the  case  under  consideration  cannot  be  distinguished 
from  that  of  Swales  or  Morrisson.  It  is  true  that  in  the  Swales  case 
the  petitioner  was  seeking  administration  instead  of  dower,  but  if 
she  was  the  widow  of  the  decedent  she  had  a  statutory  right  to 
administer  the  estate,  and  the  plaintiff  in  her  action  for  dower  has 
no  greater  right.  In  the  Sivales  case  the  petitioner,  after  procuring 
her  decree  of  divorce,  had  remarried.  In  this  case  the  plaintiff  pro- 
cured her  divorce  but  did  not  remarry;  but  it  does  not  appear  to  us 
that  this  distinction  affects  the  legal  proposition  involved. 

It  is  said  in  the  Swales  case  that  the  action  of  the  plaintiff  in 
procuring  the  decree  of  divorce  in  Illinois  does  not  constitute  an 
estoppel  within  the  ordinary  acceptation  of  that  term,  for  the  reason 
that  it  did  not  influence  the  decedent  to  do  anything  which  he  would 
not  otherwise  have  done.  That  may  be  true  in  that  case,  and  yet 
in  other  cases  the  decree  may  influence  parties  to  do  that  which  they 
otherwise  would  not  have  done.  The  statute  of  the  state  of  Massa- 
chusetts, upon  certain  conditions,  permits  both  parties  to  marry 
again.  If  Starbuck  had  gone  to  that  state  and  had  contracted  a 
marriage  with  a  woman  there,  who  acted  upon  the  faith  of  the  decree 
that  the  plaintiff  had  obtained,  it  may  be  that  a  question  of  estoppel 
would  have  been  presented.  Moore  v.  Hegeman,  92  N.  Y.  521,  44 
Am.  Rep.  408.  But  we  do  not  deem  it  necessary  to  determine  that 
question  at  this  time.  We  prefer  to  rest  our  decision  upon  the 
principle  that  the  plaintiff,  having  invoked  the  jurisdiction  of  the 
Massachusetts  court  and  submitted  herself  thereto,  cannot  now  be 
heard  to  question  the  validity  of  its  decree. 

The  judgment  of  the  Appellate  Division  and  that  of  the  trial  court 
should  be  reversed,  and  the  plaintiff's  complaint  dismissed  with  costs 


Adultery. 
MOORS  V.   MOORS. 

121   Mass.  232. —  1876. 

Libel  for  divorce  from  the  bonds  of  matrimony  for  desertion. 
Hearing  before  Gray,  C.  J.,  who  reserved  the  case  for  the  consider- 
ation of  the  full  court  as  follows: 

At  September  term,  1874,  the  libel  was  filed,  and  notice  ordered 


ADULTERY.  2/5 

by  publication,  returnable  to  April  Term,  1875,  when  a  decree  of 
divorce  nisi  was  granted,  to  be  made  absolute  on  notice  after  six 
months'  publication,  "  upon  compliance  with  the  terms  thereof,  un- 
less sufificient  cause  to  the  contrary  appear."  At  the  hearing  upon 
the  motion  to  make  the  decree  absolute,  it  appeared  that  its  terms 
had  been  complied  with;  but  that  in  June,  1875,  the  decree  not  hav- 
ing been  made  absolute,  and  the  libelee  being  still  alive,  the  libel- 
ant, believing  that  he  had  obtained  a  divorce  and  was  at  liberty  to 
marry  again,  married  another  woman,  and  that  she  was  now  preg- 
nant by  him.  Such  order  or  decree  is  to  be  made  as  law  and  justice 
may  require. 

Ames,  J.  The  decree  nisi  heretofore  entered  in  this  case  was,  as 
the  term  imports,  provisional  only,  and  did  not  have  the  effect  of 
dissolving  the  marriage  between  the  parties.  The  libelant  was  not 
entitled  to  a  full  divorce  until  he  had  proved  that  he  had  given  the 
notice  required  by  the  rule  of  the  court  under  the  Stat,  of  1867,  c. 
222,  and  that  no  cause  to  the  contrary  had  been  made  to  appear. 
Until  that  is  done,  and  the  conditional  decree  of  divorce  is  made 
absolute,  the  marriage  relation  between  the  parties  continues  to  sub- 
sist. Of  course  the  subsequent  marriage,  which  the  libelant  has 
undertaken  to  contract  with  another  woman,  is  illegal  and  void. 
Graves  v.  Graves,  108  Mass.  314,  320;  Edgerlyv.  Edgerly,  112  Mass.  53. 

It  is  urged  that  as  the  libelant  acted  under  the  belief  that  he  had 
obtained  a  divorce  and  was  at  liberty  to  marry  again,  his  intercourse 
with  the  woman  whom  he  had  since  married  was  not  adulterous. 
But  we  do  not  find,  in  the  facts  reported,  anything  to  justify  him  in 
such  an  assumption.  The  terms  of  the  notice  which  he  was  required 
to  give  imply  the  possibility  that  some  cause  might  be  shown  why 
the  divorce  should  not  be  made  absolute.  If  he  acted  in  good  faith 
and  under  an  honest  mistake  as  to  his  rights  and  duties,  that  fact 
might  properly  be  considered  in  mitigation  of  punishment  if  he 
should  be  indicted  for  adultery,  but  would  be  of  no  avail  as  a  ground 
of  defence.  Commonwealth  v.  Thompson,  11  Allen,  23.  It  hardly 
need  be  added  that  this  second  marriage  furnishes  sufficient  cause 
why  the  conditional  divorce  should  not  be  made  absolute.  We  can 
not  agree  with  the  counsel  for  the  libelant,  that  the  illegality  is 
merely  technical.      Clapp  v.  Clapp,  97  Mass.  531. 

Libel  dismissed.' 

'  Accord  in  N.  Y.,  under  a  similar  statutory  provision  deferring  the  final  decree 
(Code  Civ.  Pro.  §  1774),  Petit  v.  Petit,  45  Misc.  155  (Special  Term). 

As  to  sufficiency  of  proof  of  adultery,  see  Aitchtson  v.  Aitchison,  99  la.  93. 


276  DIVORCE    AND    SKl'ARA  IION. 

Cruelty. 

ROBINSON  7'.    ROBINSON. 

66  N.  H.  600.—  1891. 

Libel  for  divorce.  The  alleged  cruelty  was  the  behavior  of  plain- 
tiff's wife  in  adopting  the  doctrines  and  professional  practice  of 
Christian  Science.  She  was  ridiculed,  his  business  suffered,  and  he 
became  moody,  morose  and  was  troubled  with  insomnia,  owing  to 
this  domestic  trouble.  He  used  every  effort  to  get  her  to  desist 
from  practice  of  the  profession,  even  though  she  might  retain  her 
belief  in  its  doctrines,  but  she  persistently  refused.  The  health  of 
the  plaintiff  was  seriously  injured  by  the  consequences  of  the  con- 
duct of  this  wife. 

Carpenter,  J.  The  act  of  February  17,  1791,  declared  that 
"  divorces  may  be  decreed  for  the  cause  of  extreme  cruelty  in  either 
of  the  parties."  Laws  (ed.  1830)  157.  What  constitutes  extreme 
cruelty  was  left  to  be  determined  by  the  ecclesiastical  common  law. 
"  Mere. austerity  of  temper,  petulance  of  manners,  rudeness  of  lan- 
guage, a  want  of  civil  attention  and  accommodation,  even  occasional 
sallies  of  passion,  if  they  do  not  threaten  bodily  harm,  do  not 
amount  to  legal  cruelty;  they  are  high  moral  offences  in  the  mar- 
riage state  undoubtedly,  not  innocent  surely  in  any  state  of  life,  but 
still  they  are  not  that  cruelty  against  which  the  law  can  relieve. 
Under  such  misconduct  of  either  of  the  parties  —  for  it  may  exist  on 
the  one  side  as  well  as  on  the  other  —  the  suffering  party  must  oear 
in  some  degree  the  consequences  of  an  injudicious  connection;  must 
subdue  by  decent  resistance  or  by  prudent  conciliation;  and  if  this 
cannot  be  done,  both  must  suffer  in  silence.  If  it  be  complained 
that  by  this  inactivity  of  the  courts  much  injustice  may  be  suffered 
and  much  misery  produced,  the  answer  is,  that  courts  of  justice  do 
not  pretend  to  furnish  cures  for  all  the  miseries  of  human  life;  they 
redress  or  punish  gross  violations  of  duty,  but  they  go  no  further; 
they  cannot  make  men  virtuous;-  and  as  the  happiness  of  the  world 
depends  upon  its  virtue,  there  may  be  much  unhappiness  in  it  which 
human  laws  cannot  undertake  to  remove. 

"  Still  less  is  it  cruelty  when  it  wounds  not  the  natural  feelings, 
but  the  acquired  feelings  arising  from  particular  rank  and  situation; 
for  the  court  has  no  scale  of  sensibilities  by  which  it  can  gauge  the 
quantum  of  injury  done  and  felt;  and,  therefore,  though  the  court 
will  not  absolutely  exclude  considerations  of  that  sort  where  they 
are  stated  merely  as  matter  of  aggravation,  yet  they  cannot  consti- 


CRUELTY.  2r7 

tute  cruelty  where  it  would  not  otherwise  have  existed.  *  *  * 
The  rule  cited  by  Dr.  Bever,  from  Clarke  and  the  other  books  of 
practice,  is  a  good  general  outline  of  the  canon  law,  the  law  of  this 
country,  upon  this  subject.  In  the  older  cases  of  this  sort  which  I 
have  had  an  opportunity  of  looking  into,  I  have  observed  that  the 
danger  of  life,  limb,  or  health  is  usually  inserted  as  the  ground  upon 
which  the  court  has  proceeded  to  a  separation.  This  doctrine  has 
been  repeatedly  applied  by  the  court  in  the  cases  that  have  been 
mentioned;  the  court  has  never  been  driven  off  this  ground;  it  has 
been  always  jealous  of  the  inconvenience  of  departing  from  it;  and 
I  have  heard  no  one  case  cited  in  which  the  court  has  granted  a 
divorce  without  proof  given  of  a  reasonable  apprehension  of  bodily 
hurt.  I  say  an  apprehension,  because  assuredly  the  court  is  not 
to  wait  till  the  hurt  is  actually  done;  but  the  apprehension  must  be 
reasonable;  it  must  not  be  an  apprehension  arising  merely  from  an 
exquisite  and  diseased  sensibility  of  mind.  Petty  vexations  applied 
to  such  a  constitution  of  mind  may  certainly  in  time  wear  out  the 
animal  machine,  but  still  they  are  not  cases  of  legal  relief;  people 
must  relieve  themselves  as  well  as  they  can  by  prudent  resistance,  — 
by  calling  in  the  succors  of  religion  and  the  consolations  of  friends; 
but  the  aid  of  courts  is  not  to  be  resorted  to  in  such  cases  with  any 
effect."  Evans  v.  Evans,  i  Hagg.  Con.  35,  38-40  (decided  in  1790). 
"  There  must  be  something  which  renders  cohabitation  unsafe;  for 
there  may  be  much  unhappiness  from  unkind  treatment  and  from 
violent  and  abusive  language;  —  but  the  court  will  not  interfere  — 
it  must  leave  parties  to  the  correction  of  their  own  judgment;  they 
must  bear  as  well  as  they  can  the  consequences  of  their  own  choice. 
Words  of  menace  are  different;  if  they  are  likely  to  be  carried  into 
effect,  the  court  is  called  on  to  prevent  their  being  carried  on  to 
mischief."  Harris^.  Harris,  2  Ph.  Ecc.  111(1813).  "To  amount 
to  cruelty,  there  must  be  personal  violence  or  manifest  danger  of  it; 
for  unkindness,  reproachful  language  on  the  one  side,  or  vain  and 
unfounded  fear  on  the  other,  do  not  constitute  any  case  of  cruelty 
which  the  law  can  notice."  Barleev.  Barlec,  i  Add.  Ecc.  301,  305 
(1822).  "  Legal  cruelty  is  not  established.  Quarrels,  and,  if  im- 
plicit credit  can  be  given  to  the  witnesses  on  the  libel,  much  im- 
proper language  by  the  husband  passed,  but  there  was  no  conduct 
to  excite  in  the  wife  any  reasonable  apprehension  of  danger  to  her 
person."  Kenrick  v.  Kenrick,  4  Hagg.  Ecc.  114,  129  (1831). 
"  Where  there  is  a  strong  conviction  in  the  mind  of  the  court  that 
the  personal  safety  of  the  wife  is  in  jeopardy,  or  where  even  it  may 
see  reasonable  ground  to  apprehend  such  consequence,  it  is  its 
bounden  duty  to  protect  the  wife  from  risk  and  danger.     In  these 


278  DIVORCE    AND    SEI'ARAIION, 

suits  the  species  of  facts  most  generally  adduced  are,  —  first,  personal 
ill  treatment,  which  is  of  different  kinds,  such  as  blows  or  bodily 
injury  of  any  kind;  secondly,  threats  of  such  a  description  as  would 
reasonably  excite  in  a  mind  of  ordinary  firmness  a  fear  of  personal 
injury.  For  causes  less  stringent  than  these  the  court  has  no  power 
to  interfere  and  separate  husband  and  wife.  *  *  *  Short  of  per- 
sonal violence,  or  reasonable  apprehension  of  it,  I  have  no  authority 
to  interfere."  Nce/d  v.  Neeld,  4  Hagg.  Ecc.  263,  265,  271  (1831). 
To  constitute  cruelty  "  there  must  be  either  actual  violence  com- 
mitted, attended  with  danger  to  life,  limb,  or  health;  or  there  must 
be  a  reasonable  apprehension  of  such  violence.  This  I  apprehend 
to  be   the  substance  of  the  doctrine  laid  down   in  Evans  v.  Evans, 

*  *  *  and  in  other  subsequent  cases."  Lockivood  v.  Lockwood, 
2  Cur.  Ecc.  281,  283  (1839). 

In  Chesnutt  v.  Chesnutt,  i  Spinks  196  (1854),  one  of  the  charges 
against  the  defendant  was  that  "  he  used  obscene  and  blasphemous 
language,  was  constantly  intoxicated,  and  thereby  occasioned  his 
wife  great  mental  suffering  and  bodily  ill  health."  The  court  (Dr. 
Lushington)  say,  pp.  188,  191  —  "Here  is  no  charge  either  of 
bodily  violence  inflicted,  or  of  threats  of  personal  ill  treatment. 
However  disgusting  the  use  of  the  language  charged,  if  proved, 
may  be  —  however  degrading  habits  of  intoxication  —  however  annoy- 
ing to  a  wife,  especially  the  wife  of  a  gentleman  and  a  clergyman, — 
these  facts  standing  alone  do  not  constitute  legal  cruelty.  If  it  be 
said  that  the  consequences  to  the  wife  are  mental  suffering  and  bodily 
ill  health,  I  do  not  think  that  the  case  would  be  carried  further. 
The  same  might  be  said  of  other  vices,  — of  gaming,  for  instance; 
of  gross  extravagance,  to  the  ruin  of  a  wife  and  family;  —  all  these 
might  occasion  great  mental  suffering,  and,  consequent  thereon, 
bodily  ill  health  to  the  wife;  but  they  do  not  constitute  legal  cruelty. 
Such  consequences,  to  be  the  subject  of  legal  redress,  must  emanate 
from  bodily  ill  treatment,  or  threats  of  the  same.  Such  I  appre- 
hend to  be  the  clear  line  of  distinction  drawn  by  all  the  authorities. 

*  *  *  Mental  anxiety,  excitement,  bodily  illness,  though  occa- 
sioned to  the  wife  by  the  conduct  of  the  husband,  do  not  constitute 
cruelty,  except  such  conduct  was  accompanied  with  violence  or 
threats  of  violence." 

In  Barrere  v.  Barrere,  4  Johns.  Ch.  187,  189  (1819),  Kent,  Ch., 
after  reciting  the  facts,  says:  "There  can  be  no  doubt  that  these 
acts  of  bodily  violence  and  harm  amount  to  that  cruelty  against 
which  the  law  intended  to  relieve.  Mere  petulance  and  rudeness 
and  sallies  of  passion  might  not  be  sufficient;  but  a  series  of  acts  of 
personal   violence,  or  danger  of  life,  limb,  or  health,   have  always 


CRUELTY.  279 

been  held  sufficient  ground  for  a  separation  by  the  canon  law,  which 
is  the  law  of  England  upon  this  subject.  Though  a  personal  assault 
and  battery,  or  a  just  apprehension  of  bodily  hurt,  may  be  ground 
for  this  species  of  divorce,  yet  it  must  be  obvious  to  every  man  of 
reflection  that  much  caution  and  discrimination  ought  to  be  used 
on  this  subject.  The  slightest  assault  or  touch  in  anger  would 
not  surely,  in  ordinary  cases,  justify  such  a  grave  and  momentous 
decision." 

"  The  cruelty  which  entitles  the  injured  party  to  a  divorce  con- 
sists in  that  kind  of  conduct  which  endangers  the  life  or  health  of 
the  complainant,  and  renders  cohabitation  unsafe.  If  the  charges 
in  this  bill  are  true;  if  this  defendant  permits  her  passions  so  far  to 
usurp  the  throne  of  reason  as  to  allow  her  to  *  *  *  commit 
personal  violence  upon  her  husband  in  his  sleep,  *  *  *  ^q 
threaten  his  destruction  by  poison  and  even  to  go  so  far  as  to  procure 
a  deadly  drug  for  that  purpose,  not  only  his  health,  but  even  his 
life,  is  in  actual  danger  from  her  violence."  Perry  v.  Perry ^  2  Paige, 
501-503  (1831).  "  It  is  true,  that  to  constitute  saevitia  known  to  the 
civil  law,  *  *  *  it  is  not  necessary  there  should  be  an  infliction 
of  bodily  injury,  or  any  act  of  personal  violence  committed.  It  is 
sufficient  if  there  be  a  series  of  unkind  treatment  accompanied  by 
words  of  menace  creating  a  reasonable  apprehension  that  bodily 
injury  may  result  to  the  wife  unless  prevented.  *  *  *  j^- 
[cruelty]  must  be  actual  personal  violence,  menaces  or  threats,  cre- 
ating reasonable  apprehension  of  bodily  harm."  Masonv.  Mason, 
I  Edw.  Ch.  278,  291,  292  (1832).  The  courts  of  Massachusetts  held 
substantially  the  same  doctrine.  Hill  v.  Hill,  2  Mass.  150  (1806); 
Warre?i  v.  Warrefi,  3  Mass.  321(1807);  French  v.  French,  4  Mass. 
587  (1808). 

The  question  what  constitutes  extreme  cruelty  first  came  before 
this  court  in  1834,  in  Harratt  v.  Harratt,  7  N.  H.  196.  The  evidence 
proved  that  the  defendant  had  threatened  to  take  the  plaintiff's  life, 
had  treated  her  harshly  and  with  neglect  in  sickness,  and  had  ceased 
to  provide  for  her  support;  it  also  tended  to  show  a  reasonable 
apprehension  that  cohabitation  might  subject  the  plaintiff  to  disease. 
The  court,  Parker,  J.,  after  citing  with  approval  Warren  v.  Warren, 
Evans  v.  Evans,  and  some  of  the  other  foregoing  cases,  say,  "  That 
cruelty  may  be  extreme  without  blows  cannot  be  doubted;  and  we 
have  no  difficulty  in  holding  that  where  the  causes  are  grave  and 
weighty,  and  such  as  to  show  an  impossibility  that  the  duties  of  the 
married  life  can  be  discharged — when  violence  is  menaced,  and 
there  is  reasonable  apprehension  of  danger  to  life,  limb,  or  health  — 
the  case  comes  within  our  statute,  and  that  the  court  ought  not  to 


280  DIVORCE    AND    SEPARATION. 

wait  until  the  hurt  is  actually  done.  There  has  been  more  doubt 
whether  the  case  before  us,  on  the  facts  in  evidence,  comes  clearly 
within  the  principle.  The  evidence,  however,  shows  that  the  life  of 
the  libelant  has  been  threatened,  and  we  cannot  say  that  there  is 
no  probability  that  violence  will  be  resorted  to;  and  as  there  is  fur- 
ther evidence  of  harsh  treatment  and  neglect,  and  of  circumstances 
tending  to  show  that  cohabitation  would  be  attended  with  danger  to 
the  health  of  the  libelant,  the  court  is  of  opinion  that  all  these  cir- 
cumstances combined  bring  the  case  within  the  statute."  In  Poor 
V.  Foor^  8  N.  H.  307,  315,  316,  decided  in  1836,  Richardson,  C.  J., 
says:  "What,  then,  is  extreme  cruelty?  It  is  not  mere  austerity 
of  temper,  petulance  of  manners,  rudeness  of  language,  a  want  of 
civil  attention,  or  even  occasional  sallies  of  temper,  if  there  be  no 
threat  of  bodily  harm.  *  *  *  In  the  judgment  of  law,  any  willful 
misconduct  of  the  husband  which  endangers  the  life  or  health  of  the 
wife,  which  exposes  her  to  bodily  hazard  and  intolerable  hardship 
and  renders  cohabitation  unsafe,  is  extreme  cruelty.  And  in  order 
to  amount  to  such  cruelty  it  is  not  necessary  that  there  should  be 
many  acts.  Whenever  force  and  violence,  preceded  by  deliberate 
insult  and  abuse,  have  been  once  wantonly  and  without  provocation 
used,  the  wife  can  hardly  be  considered  safe." 

To  constitute  extreme  cruelty,  direct  bodily  injury,  actual  or 
threatened,  was  essential.  Threats  of  personal  violence,  unless  of 
such  a  character  as  to  create  "  in  a  mind  of  ordinary  firmness  ' '  a  rea- 
sonable apprehension  that  they  might  be  executed,  were  not  legal 
cruelty.  To  the  exceptionally  sensitive  and  timid  wife,  put  in 
actual  and  constant  fear  of  limb  or  life  by  conduct  not  calculated  to 
have  that  effect  on  a  person  of  normal  and  ordinary  sensibility,  the 
law  of  divorce  afforded  no  relief.  The  infliction  of  mere  mental 
pain,  however  seriously  it  might  injure  health  or  endanger  reason, 
was  not  legal  cruelty.  A  husband  might  violate  all  the  proprieties 
and  decencies  of  social  life;  he  might  call  "  his  virtuous  wife  a 
strumpet,  saying  so  not  to  herself  alone,  but  before  everybody,"  al- 
though "  as  far  as  suffering  was  concerned  he  had  better  kick  her  " 
{Fatersonx.  Faterson,  3  H.  L.  Ca.  308,  313);  he  might  bring  prosti- 
tutes into  his  family  and  seat  them  at  his  table, —  make  his  house  a 
brothel, —  and  the  law,  if  it  w^ould  justify  the  wife  in  leaving  him, 
afforded  her  no  other  remedy.     For  such  conduct  as  that  described 

in  IV V.   W ,  141    Mass.  495,   and  the  injury  caused   to 

"  her  health  by  its  effect  upon  her  feelings,"  the  wife  was  then,  in 
New  Hampshire,  as  she  is  now  in  Massachusetts,  remediless.  Con- 
stant, innumerable,  and  nameless  indignities  of  speech  and  action, 
each  possibly  petty  in  itself,  might  cause  mental  anguish  less  endur- 


CRUELTY.  281 

able,  more  hurtful  to  physical  well-being,  and  more  likely  to  over- 
turn reason,  than  any  degree  of  pain  produced  by  blows;  they  might 
make  life  intolerable  and  death  welcome,  yet  they  were  not  legal 
cruelty.  The  sufferer's  only  remedy  was  "  by  prudent  resistance," 
and  "  by  calling  in  the  succours  of  religion  and  the  consolations  of 
friends." 

In  consideration  of  this  state  of  the  law,  the  legislature,  in  1840, 
enacted  that  "  divorces  *  *  *  shall  be  decreed  in  favor  of  the 
innocent  party  *  *  *  when  either  party  shall  so  treat  the  other 
as  seriously  to  injure  health  or  endanger  reason."  Laws  1840,  c. 
573,  sec.  I.  This  provision  in  substantially  the  same  language  has 
ever  since  remained  in  force.  Rev.  Stats,  c.  148,  sec.  3.  In  the 
revision  of  1867  it  was  verbally  modified  to  read  as  follows  :  a  di- 
vorce *  *  *  shall  be  decreed  *  *  *  v.  When  either  party 
has  so  treated  the  other  as  seriously  to  injure  health.  VI.  When 
either  party  has  so  treated  the  other  as  seriously  to  endanger  reason. 
Gen.  Stats,  c.  163,  sec.  3;  G.  L.  c.  182,  sec.  3.  The  provision  is 
to  be  construed  in  view  of  the  mischief  it  sought  to  cure.  It  was 
intended  to  provide  for  a  divorce  of  the  parties  in  cases  of  the 
character  referred  to,  where  the  conduct  complained  of  did  not  fall 
within  the  established  definition  of  extreme  cruelty.  It  gave  by 
legislation  the  relief  which  the  English  courts,  pressed  by  the  weight 
of  the  same  considerations,  have  gone  far  to  afford  [Paterson  v. 
Paterson,  3  H.  L.  Ca.  308,  318,  319,  325-329  [1849];  Kelly  v.  Kelly, 
L.  R.  2  P.  &D.  31  [1869];  Myttonv.  Myttou,  11  P.  D.  141  [1886],  and 
Bish.  Mar.  &  Div.  [4th  ed.],  sec.  722,  n),  and  which  the  courts  of  some 
jurisdictions  under  like  pressure  have  afforded  by  a  more  liberal 
interpretation  of  the  term  "  cruelty."  Butler  \.  Butler,  i  Par.  Eq. 
Gas.  329;  Powelson  v.  Powelson,  22  Cal.  358;  Latham  v.  Latham,  30 
Grat.  307;  Cole  v.  Cole,  23  Iowa,  433;  Gholston  v.  Gholston,  31  Ga. 
625;  Palmer  y .  Palmer,  45  Mich.  150;  Carpenter  y .  Carpenter,  30  Kan, 
712;  McMahan  v.  McMahan,  9  Or.  525;  Kelly  v.  Kelly,  18  Nev.  49; 
Jones  v.  Jones,  60  Tex.  460. 

Whether  one  party  has  been  so  treated  by  the  other  as  seriously 
to  injure  health  or  endanger  reason  is  a  pure  question  of  fact. 
It  cannot  be  declared  as  matter  of  law  that  any  particular  treat- 
ment may  not  have  that  effect.  The  gist  of  these  causes  of  divorce 
is  the  injury  to  health  and  the  danger  to  reason.  Conduct  which  to 
a  serious  extent  produces  either,  though  not  intended  to  have  such 
a  result, —  though  it  be  "  purely  self-regarding,"  and  not  "  directed 
towards  "  or  "  forced  even  upon  the  knowledge  of  "  the  other  party 

"  otherwise  than  by  the  usual  intimacy  of  matrimony  "  {W v. 

W ,  141  Mass.   495,  496), —  is  a  cause  of  divorce.     Any  be- 


282  DIVORCE    AXI)    SKl'ARA  TION. 

havior  of  one  party  which  affects  the  other  physically  or  mentally  is 
treatment  within  the  meaning  of  the  statute.  A  narrower  sense 
cannot  be  given  to  the  language  used  without  ignoring  the  extent  of 
the  evil  to  be  cured,  and  depriving  a  large  proportion  of  those  who 
suffer  from  it  of  the  protection,  and  legislation  was  to  make  the 
remedy  coextensive  with  the  mischief.  A  malevolent  motive  in  the 
party  complained  of  need  not  be  shown.  Divorce  is  not  punish- 
ment of  the  offender,  but  relief  to  the  sufferer.  Whether  the 
behavior  proved  is  a  sufficient  ground  of  divorce  depends  on  the  ques- 
tion whether  it  has  seriously  injured  health  or  endangered  reason. 
This  is  the  sole  test.  The  question,  not  whether  the  treatment  rea- 
sonably ought,  or  could  reasonably  be  expected,  seriously  to  injure 
the  health  or  endanger  the  reason  of  a  person  of  ordinary  intelli- 
gence and  mental  strength,  but  whether  it  has,  in  fact,  had  that  effect 
upon  the  health  or  reason  of  the  person  complaining.  A  course  of 
conduct  which  would  drive  one  person  crazy,  might  have  no  effect 
on,  or  might  even  be  grateful  to,  another  and  perhaps  more  sensible 
or  less  sensitive  person  ;  but  he  or  she  whose  reason  is  imperilled  by 
it  is  not,  therefore,  to  be  compelled  to  endure  the  treatment.  That 
the  conduct  complained  of  is  in  itself  innocent,  or  even  laudable, 
and  is  pursued  from  a  sense  of  duty,  does  not  afford  a  sufficient 
reason  for  requiring  the  party  injured  by  it  to  submit  to  the  destruc- 
tion of  health,  reason,  and  life.  The  abstract  reasonableness  of  the 
treatment,  or  its  effect  upon  reasonable  persons  of  ordinary  firmness, 
does  not  enter  into  the  question.  If  it  did,  the  redress  intended  by 
the  statute  could  not  in  many  cases  be  obtained.  The  provision 
was  designed  for  the  benefit  of  the  sensitive  —  not  excepting  the  ab- 
normally sensitive  —  and  not  for  the  insensible  and  apathetic,  whom 
nothing  but  blows  can  affect.  It  was  intended  to  reach  and  provide 
relief  in  a  class  of  cases  where  extreme  cruelty  as  defined  by  law  can- 
not be  established  —  cases,  among  others,  of  slow  and  continuous 
mental  torture,  destructive  of  health  or  reason,  and  caused  by  con- 
duct not  necessarily  wrongful,  possibly  even  praiseworthy,  in  itself, 
and  made  a  cause  of  divorce  only  because  of  its  effect  upon  an  ab- 
normally sensitive  mind. 

The  injury,  and  in  greater  part  the  suffering,  caused  by  acts  tend- 
ing to  the  destruction  of  health  or  reason  may  not  depend  upon  the 
intention  with  which  they  are  done.  Whether  they  are  done  with  or 
without  malice,  they  may  be  in  their  effect  equally  hurtful  and  de- 
structive. In  the  judgment  of  the  legislature,  it  is  better  that  the 
marital  relation  be  dissolved,  than  that  by  its  continuance  the  health 
or  reason  of  either  party  be  destroyed.  Whether  the  legislation  is 
wise  or  unwise   is  a  question  upon  which  opinions  may  differ;  but 


DESERTION.  283 

With  it  the  court  has  no  concern.  Its  duty  is  to  enforce  the  law  as 
it  is  found  to  be.  To  hold  that  to  warrant  a  divorce  treatment  seri- 
ously endangering  health  or  reason  must  be  willful,  malicious,  or 
malevolent,  would  repeal  the  statute. 

It  is  found  that  the  defendant's  conduct  has  seriously  injured  the 
plaintiff's  health,  and  the  court  cannot  say  that  the  finding  is  not 
warranted  by  the  evidence,      yones  v.  yones,  62  N.  H.    463,  467. 

Divorce  granted. 

Smith,  J.,  did  not  sit;  the  others  concurred. 


Desertion. 

WATSON  V.  WATSON. 

28  Atl.  Rep.  467. 

(New  Jersey  Chancery,  1894.) 

Suit  by  George  E.  Watson  against  Mary  L.  Watson  for  divorce. 
On  exceptions  to  master's  report,  advising  that  the  petition  be  dis- 
missed.    Exceptions  overruled,  and  petition  dismissed. 

McGiLL,  Ch.  The  petitioner  and  the  defendant  were  married  in 
187 1,  and  from  that  time  until  1890  lived  together  as  husband  and 
wife.  In  April,  1890,  upon  the  occasion  of  a  disagreement,  at  which 
the  husband,  as  he  says,  merely  scolded  her,  the  wife  withdrew  from 
his  bed,  and  declared  that  she  would  never  occupy  it  with  him 
again.  She  thereupon  removed  to  the  front  or  sitting  room  of  the 
two  apartments  they  occupied  in  a  boarding  house,  locked  the  door 
between  the  apartments,  and  made  her  bedroom  there  until  July, 
1892,  when  she  took  board  at  another  place.  I  find  that  during  the 
time  in  question,  although  the  communications  between  the  husband 
and  wife  were  rude  and  severely  constrained,  they  nevertheless 
admitted  of  indirect  consultations  concerning  the  needs,  comfort, 
and  welfare  of  their  two  daughters,  who  were  away  at  school.  The 
wife  also  cared  for  their  rooms  and  linen,  and  the  husband  gave  her 
money  for  her  wants,  and  paid  her  board.  They  appeared  at 
meals  at  the  same  time,  and  at  the  same  table,  so  that  their  disagree- 
ment did  not  manifest  itself  to  other  boarders  in  the  house.  The 
petition  was  filed  early  in  the  year  1893,  and  alleges,  as  ground  for 
divorce,  a  willful,  continued  and  obstinate  desertion  by  the  husband 
for  two  years.  To  cover  that  statutory  period,  the  petitioner 
seeks  to  include  a  portion  of  the  time  prior  to  July,  1892,  and  hence 
the  question  is  presented  whether  the  withdrawal  of  a  wife  from  sex- 


284  DIVORCE    AND    SEPARATION. 

ual  intercourse  with  her  husband,  assuming  lliat  there  was  no  just 
cause  for  the  withdrawal,  alone  constitutes  "  desertion,"  within  the 
meaning  of  the  statute. 

A  single  word  as  to  a  suggestion  of  acquiescence  on  the  part  of 
the  petitioner.  It  does  not  appear  that  he,  with  determined  ear- 
nestness-, ever  sought  the  restoration  of  his  marital  rights.  He  ap- 
pears rather  to  have  submitted  to  the  position  in  which  his  wife's 
determination  placed  him,  acting  as  one  who,  for  cause,  acquiesces 
in  the  justness  of  a  decision  against  him,  basing  whatever  feeble 
effort  he  may  have  made  in  that  direction  upon  consideration  for 
their  children.  Upon  her  part,  on  the  contrary,  the  attitude  appears 
to  be  one  of  distress,  and  yet,  filled  with  consciousness  of  power 
which  the  right  gives,  she  fearlessly  demands  her  support  from  him. 
I  think,  however,  that  this  appearance  of  acquiescence  of  the  hus- 
band rests  too  largely  upon  inference  and  conjecture  to  be  made  the 
basis  of  a  decision.  I  prefer  to  assume  that  there  was  no  acquies- 
cence and  to  meet  the  question  first  stated.  I  have  read  with  inter- 
est the  elaborate  argument  of  Mr.  Bishop,  in  his  work  on  Marriage, 
Divorce,  and  Separation  (volume  2,  sec.  1676,  et  seg.),  in  favor  of 
an  affirmative  answer  to  this  question  as  the  "  better  opinion,"  but 
I  am  unwilling  to  accept  it  as  the  true  construction  of  our  statute. 
The  word  "  desertion,"  I  think,  is  used  in  the  sense  of  "  abandon," 
to  the  extent  that  the  deserted  party  must  be  deprived  of  all  real 
companionship  and  every  substantial  duty  which  the  other  owes  to 
him  or  her.  It  would,  I  think,  degrade  the  marriage  relation  to  hold 
that  it  is  abandoned  when  sexual  intercourse  only  ceases.  The  law- 
fulness of  that  intercourse  is  perhaps  a  prominent  and  distinguishing 
feature  of  married  life,  but  it  is  not  the  sum  and  all  of  it.  The 
higher  sentiment  and  duty  of  unity  of  life,  interest,  sympathy,  and 
companionship  have  an  important  place  in  it,  and  the  thousand  min- 
istrations to  the  physical  comforts  of  the  twain,  by  each  in  his  or  her 
sphere,  in  cohsideration  of  the  marriage  obligation,  and  without 
ceaseless  thought  of  pecuniary  recompense,  fills  it  up.  These  latter 
factors  may  possibly,  to  some  extent,  exist  in  other  relations  of  life, 
but  not  in  completeness.  They  are  all  necessary  to  the  perfect 
marriage  relation.  My  opinion  is  that  our  statute  means  that 
divorce  may  be  had  when  substantially  all  of  these  duties  and  ameni- 
ties shall  have  been  abandoned  by  the  guilty  party,  willfully,  contin- 
uedly,  and  obstinately,  for  two  years,  and  not  until  then.  In  other 
words,  the  desertion  must  be  complete,  not  partial;  and,  when  the 
party  accused  remains  in  discharge  of  any  duties  which  arise  in 
value  above  mere  pretence  and  form,  the  desertion  which  the  statute 
contemplates  does  not    exist.     This  I  understand  to  be  the  meaning 


DESERTION.  285 

accorded  to  the  word  "  desertion  "  .in  the  statute  of  Massachusetts. 
Southwick  V.  Sout/miick,  97  Mass.  327;  Magrath  v.  Magrath,  103 
Mass.  577;  Cowles  \ .  Cmvies,  112  Mass.  298.  In  the  present  case,  I 
find  that,  within  two  years  prior  to  the  filing  of  the  bill,  the  defend- 
ant did  remain  with  her  husband,  in  the  discharge  of,  at  least,  a 
substantial  portion  of  her  duty  to  him.  I  will  sustain  the  master  in 
his  conclusion,  and  dismiss  the  petition. 


DANFORTH  v.   DANFORTH. 

88  Me.  120. —  1895. 

Walton,  J.  The  question  is  this:  If  a  wife  deserts  her  husband, 
and  remains  away  from  him  for  three  consecutive  years,  and,  during 
all  that  time,  continuously  and  unreasonably  refuses  to  return,  will 
the  fact  that,  within  the  three  years,  her  husband  once  visited  her 
and  occupied  the  same  bed  with  her  for  two  or  three  nights,  neces- 
sarily interrupt  the  desertion  and  bar  his  right  to  a  divorce  for  that 
cause? 

We  think  not.  Desertion,  such  as  will  be  a  valid  cause  for  a 
divorce,  is  not  easily  defined.  Steivart  v.  Stewart,  78  Me.  548,  and 
cases  there  cited.  And  it  may  be  equally  difficult  to  define  what 
will  constitute  an  interruption  or  condonation  of  desertion.  The 
authorities  are  conflicting  and  confusing. 

In  Kennedy  v.  Kennedy,  87  111.  250,  where  a  wife,  without  justifica- 
tion, refused  to  go  to  a  new  home  which  her  husband  had  prepared 
for  her,  and  remained  away  for  the  statutory  length  of  time  neces- 
sary to  create  a  valid  ground  for  divorce,  the  court  held  that  the 
fact  that  on  one  occasion  he  cohabited  with  her  at  her  brother's 
house,  did  not  interrupt  the  desertion  or  bar  his  right  to  a  divorce. 

And  we  have  reached  the  same  conclusion.  "  Utter  desertion 
continued  for  three  successive  years,"  is  one  of  the  causes  for 
which  a  divorce  may  be  granted.  R.  S.  c.  60,  sec. 2.  And  we  think 
that  if  a  wife  deserts  her  husband  and  remains  away  from  him  for 
the  full  period  of  three  consecutive  years,  and,  during  all  that  time, 
continuously  and  unreasonably  refuses  to  return,  his  right  to  a 
divorce  is  complete,  and  cannot  be  defeated  by  proof  that  on  one 
occasion,  within  the  three  years,  he  visited  his  wife,  and,  for  two  or 
three  nights,  occupied  the  same  bed  with  her. 

Such  a  visit  is  not  illegal  or  improper.  On  the  contrary,  it  has 
often  been  held  to  be  the  duty  of  the  husband  to  visit  his  absent 
wife,  and  to  endeavor  by  all  proper  means   to  effect  a  reconciliation. 


286  DIVORCE   AND    SEPARATION. 

If  he  succeeds,  and  his  wife  returns  to  her  home  and  to  her  duties 
as  his  wife,  undoubtedly  her  prior  desertion  will  be  interrupted, 
or  regarded  as  condoned,  and  cannot  be  added  to  a  subsequent  de- 
sertion for  the  purpose  of  completing  the  three  years  necessary  to 
entitle  her  husband  to  a  divorce.  But  if,  in  spite  of  his  efforts,  his 
wife  persistently  and  unreasonably  refuses  to  return,  and  continu- 
ously remains  away  from  him  for  three  consecutive  years,  we  think 
her  husband's  right  to  a  divorce  is  complete  —  that  the  mere  fact 
that  on  one  occasion  he  visited  her,  and  for  two  or  three  nights 
occupied  the  same  bed  with  her,  does  not  interrupt  the  continuity  of 
her  desertion. 

Case  remanded  for  further  liearing  in  the  court  below.' 


Imp  rison  men  t. 

LEONARD  V.   LEONARD. 

151  Mass.  151. —  1890. 
C.  Allen,  J.  The  libellant  seeks  a  divorce  from  her  husband  on 
the  ground  that  he  has  been  sentenced  to  imprisonment  at  hard 
labor  in  the  state  prison  at  Waupun,  Wisconsin,  for  a  term  of  seven 
years  and  six  months;  and  the  question  presented  to  us  is  whether 
such  a  sentence  passed  in  another  state  is  a  good  cause  of  divorce 
here.     The   Pub.  Sts.  c.  146,  sec.  2,  provide   that  a  divorce   may  be 

'  "The  grounds  alleged  by  the  wife  are,  that  without  fault  on  her  part,  the 
husband  abandoned  her  for  a  year  before  the  institution  of  the  action,  and  that 
for  more  than  six  months  he  behaved  to  her  habitually  in  such  cruel  and  in- 
human manner  as  to  destroy  her  peace  and  happiness,  and  to  indicate  a  settled 
aversion  to  her.  The  proof  sustains  neither  ground.  After  living  together 
some  eight  or  ten  years  at  the  home  of  the  husband's  father  in  Oldham  county, 
and  on  his  farm,  the  parties  moved  to  the  house  of  the  wife's  mother  in  Shelby- 
ville,  where  the  husband  kept  a  butcher's  shop.  After  living  there  some  two 
years  or  more,  the  mother-in-law  ordered  the  husband  away,  but  allowed  the 
wife  to  remain,  and  she,  in  August,  1890,  moved  to  Louisville  to  live  with  her 
sister.  When  a  year  expired  she  brought  this  suit.  The  proof,  however,  shows 
that  she  visited  her  husband  on  his  farm  in  Oldham  county,  in  the  summer  and 
fall  of  1890,  spending  the  night  with  him.  In  November  also  of  that  year  she 
went  with  her  husband  to  visit  Fox  and  wife,  and  they  spent  the  night  there 
together.  Here  they  appeared  to  be  living  happily  together  as  husband  and 
wife.  They  also  stayed  together  at  the  St.  Cloud  Hotel,  in  Louisville,  on  the 
night  of  December  26,  i8go.  These  occurences  were  from  eight  to  ten  months 
only  before  the  institution  of  the  action.  They  evince  anything  else  than  an 
'abandonment,'  such  as  the  statute  contemplates."  Hazelrigg,  J.,  in  Woolfclk 
V.   Wool/elk,  96  Ky.  657,  658. 


CONDONATION.  287 

decreed  "  when  either  party  has  been  sentenced  to  confinement  at 
hard  labor  for  life  or  for  five  years  or  more  in  the  state  prison,  or  in 
a  jail  or  house  of  correction."  The  first  statute  in  this  common- 
wealth making  a  sentence  to  imprisonment  a  cause  of  divorce  was 
the  Rev.  Sts.  c.  76,  sec.  5,  where  the  language  is  substantially  the 
same  as  that  quoted  above,  except  that  the  term  required  is  seven 
years  or  more.  Desertion  was  not  made  a  cause  of  divorce  till  after- 
wards, by  the  St.  of  1838,  c.  126,  and  it  is,  therefore,  apparent  that 
the  sentence  of  imprisonment  was  not  deemed  merely  to  be  substan- 
tially equivalent  to  a  desertion.  It  imported  an  offence,  the  nature 
of  which  was  known  to  the  legislature.  Imprisonment  elsewhere 
might  be  for  a  cause  punishable  here  for  a  less  term,  or  possibly  not 
punishable  here  at  all.  The  term  "  the  state  prison, "when  used 
without  further  description  in  the  Revised  Statutes,  as  well  as  in 
the  more  recent  legislation,  means  the  state  prison  of  this  common- 
wealth. Beards.  Boston^  ante,  96.  No  instance  to  the  contrary  has 
been  cited  to  us,  and  we  do  not  now  recall  any.  If  a  state  prisan 
elsewhere  was  intended,  it  would  be  natural  to  say  so  in  distinct  lan- 
guage, as  in  the  Rev.  Sts.  c.  144,  sec.  34.  A  sentence  to  imprison- 
ment elsewhere  is  not  included  as  a  cause  of  divorce,  within  the 
meaning  of  the  Pub.  Sts.  c.  146,  sec.  2.     Martin  v.  Martin,  47  N.  H. 

52,  53- 

Libel  dismissed.' 


Condonation. 
ALEXANDRE  v.  ALEXANDRE. 

2  Pro.  &  Div.  (Eng.)  164. — 1870. 

This  was  a  petition  by  a  husband  for  the  dissolution  of  his  mar- 
riage on  the  ground  of  his  wife's  adultery  with  some  persons  unknown. 

It  was  proved  on  the  hearing  of  the  petition  that  the  parties  were 
married  in  Jersey  on  the  26th  of  January,  1856,  that  they  after- 
wards cohabited  in  Jersey  for  a  short  time,  that  they  then  separated, 
and  that  in  October,  i860,  during  the  separation,  the  respondent 
had  given  birth  to  a  child  of  which  the  petitioner  was  not  the  father, 
that  the  respondent  had  been  guilty  of  adultery  in  London  subse- 
quent to  the  birth  of  the  child,  and  that  in  the  months  of  March  and 
April,  1868,  subsequent  to  the  date  of  such  adultery,  the  petitioner 
and  the  respondent  had  resumed  cohabitation  and  had  lived  together 

'See  31  Lawyers'  Rep.  Ann.  for  extended  note  upon  the  effect,  upon  the  mar- 
riage relation,  of  a  conviction  and  sentence  of  either  the  husband  or  wife. 


288  DIVORCE   AND    SEPARATION. 

for  a  few  weeks  in  lodgings  in  London.  The  respondent  was  exam- 
ined as  a  witness  on  behalf  of  the  Queen's  Proctor,  and  she  stated 
that  before  she  returned  to  cohabitation  in  March,  1868,  she  con- 
fessed to  the  petitioner  that  she  had  given  birth  to  an  illegitimate 
child  during  the  separation,  and  that  he  received  her  with  a  full 
knowledge  of  that  fact,  and  allowed  the  child  to  live  with  them  in 
their  lodgings.  She  admitted,  however,  that  she  did  not  disclose  to 
him  any  other  acts  of  adultery  of  which  she  had  been  guilty  during 
the  separation. 

The  Judge  Ordinary. 

******** 

As  regards  the  adultery  which  resulted  in  the  birth  of  the  child,  I 
think  the  facts  now  disclosed  are  a  complete  answer  to  the  petitioner's 
claim  for  a  decree,  because  he  condoned  it.  But  there  is  another 
charge  of  adultery,  which  was  established  on  the  first  hearing,  and 
which  is  not  only  not  refuted  now,  but  is  really  supported  by  what  the 
respondent  has  told  us.  In  the  eighth  paragraph  of  his  petition  he 
alleges  that  from  the  month  of  September,  1867,  till  the  month  of 
March,  1868,  she  committed  adultery  with  divers  men,  on  divers 
occasions.  And  then  he  goes  on  to  allege  "That  she  lived  as  a 
prostitute  at  No.  7  Buckingham  Place."  At  the  trial  he  proved 
that  charge  by  a  policeman,  who  said  that  he  saw  this  woman  take 
men  home  to  her  house  at  night,  on  more  than  one  occasion.  When 
she  was  in  the  witness  box  she  refused  to  answer  categorically  as  to 
all  that  she  did  at  Buckingham  Place;  but  with  very  great  truth,  as 
it  seems  to  me,  she  acknowledged  that  subsequently  to  the  birth  of 
the  child  she  had  been  guilty  of  adultery,  although  she  denied  that 
she  had  led  the  sort  of  life  imputed  to  her;  and  1  am  the  more  in- 
clined to  believe  her  in  that  portion  of  her  denial  from  the  candor 
with  which  she  admitted  the  rest  of  the  charge.  Then,  substan- 
tially,  the  charge  of  adultery  at  7  Buckingham  Place  is  proved,  and 
what  answer  is  there  to  that  adultery?  It  has  never  been  condoned, 
because  the  husband  never  knew  of  it.  When  she  went  back  to  live 
with  him,  in  1868,  she  carefully  concealed  it  from  him  —  she  was 
afraid  to  tell  him.  She  told  him  of  the  child,  and  very  possibly  one 
reason  of  her  doing  so  was  that  she  was  very  anxious  to  have  the 
child  to  live  with  her.  But  whether  that  was  her  reason  or  not,  she 
admitted  having  committed  herself  once,  and  having  had  a  child; 
and  she  certainly  kept  back  the  life  she  had  been  leading  in  Buck- 
ingham Place.  It  seems  to  me,  therefore,  that  as  there  was  no  con- 
donation of  the  adultery  there  committed,  I  ought  not  to  withhold  the 
decree.  At  the  same  time,  it  was  a  most  proper  case  for  the  Queen's 
Proctor  to  investigate.     The    court  would  not  have  known  the  real 


CONNIVANCE.  289 

facts  of  the  case  if  the  Queen's  Proctor  had  not  intervened;  and  the 
petitioner  has  only  himself  to  thank  for  the  intervention,  because  he 
deliberately  inserted  in  the  petition  this  false  statement  about  the 
child.  Of  course  I  am  aware  that  evidence  might  possibly  have 
been  produced  on  his  behalf  which  might  have  contradicted  the  evi- 
dence now  before  the  court  on  that  matter,  but  it  is  a  collateral 
matter,  and  it  is  unnecessary  to  investigate  it.  It  is  sufficient  to  say 
that  an  adultery  has  been  proved  which  has  never  been  condoned, 
and  therefore  the  petitioner  is  entitled  to  his  decree. 
Decree  absolute  accordingly.' 


Connivance. 
WILSON  V.  WILSON. 

154  Mass.  194. —  1891. 

Libel  by  a  husband  to  obtain  a  divorce  on  the  ground  of  adultery. 
Trial  in  the  Superior  Court,  before  Lathrop,  J.,  who  found  that  the 
libelant  was  guilty  of  connivance,  and  ordered  a  decree  to  be  entered 
dismissing  the  libel,  and  reported  the  case  for  the  determination  of 
this  court.  If  the  evidence  did  not  warrant  the  finding,  or  if,  as 
matter  of  law,  the  order  was  wrong,  a  new  trial  was  to  be  granted; 
otherwise,  the  decree  was  to  stand.  The  nature  of  the  evidence 
appears  in  the  opinion. 

The  case  was  submitted  on  briefs  on  March  8,  1891,  and  after- 
wards, in  June  following,  was  resubmitted  on  the  same  briefs  to  all 
the  judges. 

Morton,  J.  This  case  turns  on  the  question  whether  the  finding 
of  the  court  was  correct,  that  the  libelant  was,  upon  the  evidence, 
guilty  of  connivance. 

The  libelant  did  nothing  to  encourage  his  wife  to  commit  adul- 
tery, and  did  not,  directly  or  indirectly,  throw  opportunities  in  her 
way.  Until  the  day  he  detected  her,  the  report  does  not  show  that 
any  unusual  or  improper  acts  had  occurred  in  his  presence  between 
her  and  any  other  man.  He  had  suspected  and  had  watched  her, 
but  had  not  obtained  proof  of  her  guilt,  and  had  not,  till  the  day  he 
caught  her,  had  the  assistance  of  a  detective  or  police  officer.  On 
that  day  he  came  from  his  home  in  Dorchester,  and  waited,  suspect- 
ing she  might  come  to  Boston  also,  and  might  leave  the  Dorchester 
street  car  at  the  corner  of  Federal  street  arid  Beach  street  in  Bos- 
ton, which  she  did.     She  met  a  man  by  the  name  of  Andrews,  whom 

'  Condonation  is  upon  the  implied  condition  of  future  conjugal  iiindness,  and 
a  breach  of  the  condition  revives  the  original  right  of  divorce.  Fisher  v.  Fisher, 
93  Md.  298. 

[Domestic  Relations—  19. ] 


290  DIVORCE   AND    SEPARATION. 

there  is  nothing  to  show  the  libellant  had  ever  seen  or  heard  of  be- 
fore, and  went  with  him  to  a  hotel.  The  libellant  followed  her,  and 
after  waiting  in  the  hotel  an  hour,  and  listening  ten  or  fifteen  min- 
utes at  the  door  of  the  room  where  they  were,  burst  it  open  and 
found  them  in  bed  together.  He  hoped  she  would  commit  adultery, 
so  that  he  could  get  a  divorce,  and  he  gave  her  plenty  of  time  so  that 
she  might  do  it,  and  did  not  warn  her.  He  thought  before  this  that 
she  had  committed  adultery. 

We  think,  as  matter  of  law,  it  cannot  be  said,  on  this  state  of 
facts,  that  the  libelant  was  guilty  of  connivance.  It  is  true  that  he 
could  have  prevented  his  wife  from  committing  adultery,  and  did 
not;  on  the  contrary,  he  wished  she  would,  that  he  might  have  evi- 
dence on  which  he  could  get  a  divorce.  But  he  did  not  make,  or 
aid  in  any  way  in  making,  the  opportunity.  He  did  no  overt  act, 
unless  keeping  still  was  one,  which  it  clearly  was  not.  It  was  not  a 
case  where  he  supposed  his  wife  was  about  to  commit  adultery  for 
the  first  time,  and  where  it  would  have  been  his  duty  to  give  her 
the  assistance  which  husband  and  wife  are  mutually  expected  to 
give  to  each  other.  It  certainly  cannot  be  held  that  a  husband  who 
suspects  his  wife  of  infidelity  can  take  no  means  to  ascertain  the 
truth  of  his  suspicions  without  being  deemed  guilty  of  connivance. 
"  There  is  a  manifest  distinction,"  says  the  court  in  Robbins  v. 
Robbins,  140  Mass.  528,  531,  "  between  the  desire  and  intent  of  a 
husband  that  his  wife,  whom  he  believes  to  be  chaste,  should  com- 
mit adultery,  and  his  desire  and  intent  to  obtain  evidence  against  his 
wife,  whom  he  believes  already  to  have  committed  adultery,  and  to 
persist  in   her  adulterous  practices  whenever  she   has  opportunity." 

Merely  suffering  in  a  single  case  a  wife  whom  he  already  suspects 
of  having  been  guilty  of  adultery  to  avail  herself  to  the  full  extent 
of  an  opportunity  to  indulge  her  adulterous  disposition,  which  she 
has  arranged  without  his  knowledge,  does  not  constitute  conniv- 
ance on  the  part  of  the  husband,  even  though  he  hopes  he  may  ob- 
tain proof  which  will  entitle  him  to  a  divorce,  and  purposely  refrains 
from  warning  her  for  that  reason.  He  may  properly  watch  his  wife 
whom  he  suspects  of  adultery,  in  order  to  obtain  proof  of  that  fact. 
He  may  do  it  with  the  hope  and  purpose  of  getting  a  divorce  if  he 
obtains  sufficient  evidence.  He  must  not,  however,  make  opportu- 
nities for  her,  though  he  may  leave  her  free  to  follow  opportunities 
which  she  herself  made.  He  is  not  obliged  to  throw  obstacles  in  her 
way,    but   he   must  not  smooth   her  path   to    the   adulterous    bed. 

2  Bish.  Marriage  &  Divorce  (5th  ed.),  sec.  9;     Ttmmingsw.  Timmings, 

3  Hagg.  Ecc.  76;  Stone  v.  Sto?t€,  i   Rob.  Eccl.  99m,  loi ;  Phillips  v. 
Phillips,   10  Jur.  829. 


COLLUSION.  291 

The  law  does  not  compel  a  husband  to  remain  always  bound  to  a 
wife  whom  he  suspects,  and  it  allows  him,  as  it  does  other  parties 
who  think  they  are  being  wronged,  reasonable  scope  in  their  efforts 
to  discover  whether  the  suspected  party  is  or  is  not  guilty,  without 
themselves  being  adjudged  guilty  of  conniving  at  the  crime  which 
they  are  seeking  to  detect.  Rabbins  v.  Robbins,  140  Mass.  528,  531. 
In  a  libel  for  divorce  for  desertion,  the  willingness,  or  even  the 
desire,  of  the  deserted  party  to  be  deserted,  so  long  as  it  is  not  ex- 
pressed in  conduct  or  acts  to  the  other  party,  will  not  bar  a  divorce. 
Ford\.  Ford,  143  Mass.  577.  Of  course,  as  the  court  says  in  that 
case,  there  is  always  the  difficulty  of  believing  that  the  desire  or  un- 
willingness did  not  manifest  itself  in  conduct  or  acts  expressive  of 
it  to  the  other  party.     But  nothing  of  the  sort  appears  here. 

In  St.  Paul  V.  St.  Paul,  L.  R.  i  P.  &  D.  739,  the  court  held  that 
the  neglect  of  the  husband  which  would  justify  the  court  in  with- 
holding a  decree  in  his  favor,  under  a  statute  which  provided  that 
the  court  might  do  so  where  the  husband  was  guilty  of  "  such  willful 
neglect  or  misconduct  as  *  *  *  conduced  to  the  adultery," 
must  be  such  neglect  as  conduced  to  the  wife's  fall,  and  not  neg- 
lect conducing  to  any  particular  act  of  adultery  subsequent  to 
her  fall. 

The  case,  Morrison  v.  Morrison,  136  Mass.  310,  referred  to  by  the 
libelee,  differs  from  this.  In  that  case  the  husband,  after  he  had 
been  cautioned  to  watch  his  wife,  made  opportunities  for  her  and 
her  suspected  paramour  to  be  together  alone,  witnessed  without  ob- 
jection acts  of  considerable  familiarity  between  them,  said  nothing 
whatever  to  his  wife  intimating  any  disapproval  of  her  conduct,  and 
in  other  ways  acted  in  such  a  manner  as  to  induce  the  adultery  for 
which  he  was  watching. 

In  the  opinion  of  a  majority  of  the  court,  there  must,  therefore, 
according  to  the  reservation  of  the  report,  be  a  new  trial,  and  it  is 

So  ordered. 


Collusion. 
BARNES  V.  BARNES. 

L.  R.  I  Prob.  &  Div.  (Eng.)  505.— 1868. 

This  was  a  petition  by  a  husband  for  a  dissolution  of  marriage. 
The  petitioner  was  a  valet  in  a  gentleman's  service,  and  the  respond- 
ent had  also  been  in  service.  At  the  time  when  the  adultery  was 
charged  to  have  been  committed  she  was  lodging  in  the  house  of 


292  DIVORCE   AND    SEPARATION. 

lirimwade,  the  co-respondent,  who  was  a  baker,  the  petitioner  not 
living  with  her,  l)iit  visiting  her  from  time  to  time  when  he  could 
get  leave  of  absence  from  his  service.  Neither  the  respondent,  nor 
the  co-respondent  appeared,  and  on  the  31st  of  July,  1866,  the  peti- 
tion came  on  for  hearing  before  the  judge  ordinary,  and  a  decree 
nisi  was  pronounced.  The  Queen's  Proctor  afterwards  intervened, 
and  pleaded:  i,  That  the  petitioner  had  been  acting  in  collusion 
with  the  respondent  for  the  purpose  of  obtaining  a  divorce  contrary 
to  the  justice  of  the  case.  2,  That  divers  material  facts  respecting 
the  conduct  of  the  petitioner  were  not  brought  before  the  court. 

3,  That   the    petitioner    connived    at   the    respondent's    adultery. 

4,  That  the  petitioner  was  guilty  of  adultery.  The  petitioner  tra- 
versed all  the  allegations,  and  the  cause  was  heard  by  the  judge 
ordinary  on  the  21st  and  22d  of  November,  1867. 

The  charge  of  adultery  against  the  petitioner  was  abandoned,  but 
evidence  was  produced  in  support  of  the  other  charges.  It  was,  in 
substance,  that,  before  the  adultery  complained  of,  and  while  the 
respondent  was  residing  in  the  co-respondent's  house,  the  peti- 
tioner and  the  respondent  and  the  co-respondent  had  been  in  the 
habit  of  going  together  to  places  of  amusement;  that  the  respond- 
ent and  the  co-respondent  frequently  danced  together  at  these 
places  in  the  petitioner's  presence;  that  the  petitioner  frequently 
went  away  late  at  night,  leaving  the  respondent  and  the  co-respond- 
ent together  at  these  places;  and  that  on  two  occasions  a  police- 
man, who  was  a  friend  of  the  petitioner,  had  spoken  to  him  as  to 
the  imprudence  of  his  conduct,  when  he  remarked  that  the  co- 
respondent was  a  good  fellow,  and  would  do  no  harm,  and  took  no 
further  notice. 

The  substance  of  the  evidence  as  to  the  collusion  was  that  the 
petitioner  had  several  interviews  with  the  respondent  after  he  ceased 
to  cohabit  with  her,  and  both  before  and  after  the  suit  was  instituted, 
and  that  at  some  of  these  interviews  he  gave  her  money;  that  they 
had  spoken  together  about  the  divorce,  and  he  had  told  her  not  to 
take  any  notice  of  the  suit,  for  he  could  get  a  divorce  for  ^40  if  she 
did  not  oppose,  and  he  would  be  a  friend  to  her  hereafter,  and 
would  give  her  money  when  it  was  all  settled,  and  that  he  would 
not  hurt  a  hair  of  the  co-respondent's  head,  and  the  expense  would 
not  fall  on  him;  that  on  one  occasion,  after  the  petition  and  citation 
were  served  on  her,  they  went  together  to  a  public  house,  and  had 
refreshment,  for  which  he  paid,  and  she  asked  him  what  she  was  to 
do  with  the  papers  she  had  received,  and  he  told  her  they  were  of 
no  consequence,  and  she  could  burn  them,  and  that  she  was  to  keep 
quiet. 


RECRIMINATION.  293 

The  Judge  Ordinary  [after  stating  the  facts  of  the  case,  and  re- 
ferring to  the  statute  under  which  the  Queen's  Proctor  intervened '], 
said:  I  am  of  opinion  that,  although  the  petitioner  was  reckless 
in  his  conduct,  and  careless  whether  his  wife  committed  adultery  or 
not,  the  evidence  does  not  go  so  far  as  to  establish  actual  conniv- 
ance. But  he  certainly  exposed  his  wife  to  temptation  to  which  no 
wife  ought  to  be  exposed  by  her  husband,  and  was  guilty  of  neglect 
and  misconduct  conducing  to  the  adultery. 

With  regard  to  collusion,  I  agree  with  the  learned  counsel  that 
the  mere  fact  of  his  having  given  her  money,  both  before  and  after 
the  institution  of  the  suit,  does  not  prove  collusion.  I  see  no  im- 
propriety in  a  husband  making  his  wife  a  reasonable  allowance  whilst 
a  suit  is  pending,  in  order  to  save  the  expense  of  an  application  to 
the  court  for  alimony.  If  that  evidence  stood  alone  I  should  hold 
that  it  was  not  sufficient  to  prove  the  charge  of  collusion,  but  the 
evidence  goes  much  further.  It  amounted,  in  substance,  to  this, 
that  the  petitioner  said  to  the  respondent,  "  If  you  don't  oppose,  I 
shall  get  a  divorce  cheaper  than  if  you  do;  therefore,  keep  quiet, 
and  I  will  give  you  some  money  when  the  decree  is  obtained,  and  I 
will  do  no  harm  to  the  co-respondent."  If  that  is  not  collusion,  I 
do  not  know  what  is.  It  is  said  that  she  had  no  defence  to  offer, 
and  it  certainly  seems  that  she  had  not,  as  far  as  her  own  adultery  is 
concerned.  But  if  she  had  brought  to  the  knowledge  of  the  court 
the  facts  which  have  now  been  proved  as  to  the  petitioner's  conduct 
in  exposing  her  to  temptation,  it  would  have  been  a  grave  question 
whether  the  court  would  have  granted  a  decree. 

For  these  reasons,  I  think  that  the  Queen's  Proctor  has  proved 
the  allegation  that  material  facts  have  been  suppressed.  I  think 
that  the  charge  of  collusion  is  also  established.  The  petition  must 
therefore  be  dismissed 


Recrimination. 
PEASE  V.   PEASE. 


72  Wis.  136.— 1888. 

Cole,  C.  J.  The  plaintiff  and  appellant  brought  this  action  for  a 
divorce  from  the  bonds  of  matrimony  on  the  ground  of  adultery 
committed  by  the  defendant.  The  wife  denied  the  charge  of  adul- 
tery in  her  answer,  and  by  way  of  recrimination,  defence,  or  bar  to 

'  23  and  24  Vict.  c.  144,  sec.  7. 


294  DIVORCE    AND    SKl'ARA TIUN. 

plaintiff's  action,  asked  for  a  limited  divorce  from  the  husband  on 
the  ground  of  cruel  and  inhuman  treatment  on  his  part.  On  the 
trial  of  the  issue  of  adultery  the  jury  found  against  the  defend- 
ant; and  the  court  found  the  plaintiff  guilty  of  cruel  and  inhuman 
treatment  of  the  defendant,  and  held  that  neither  party  was  entitled 
to  a  decree  of  divorce.  The  sole  question  before  us  on  this  appeal 
is  the  correctness  of  this  decision. 

Our  statutes  make  adultery  and  cruel  and  inhuman  treatment  of 
the  wife  by  the  husband  equally  grounds  of  divorce.  Sec.  2356, 
R.  S.  The  statute  places  them  upon  the  same  ground,  attended  by 
the  same  legal  consequences.  The  cruelty  complained  of  and 
proven  consisted  of  acts  of  personal  violence  on  the  part  of  the  hus- 
band; his  striking  her  in  one  instance  a  severe  blow  in  the  face  with 
his  fist  while  she  was  lying  in  bed,  which  blow  caused  a  wound  that 
bled  freely,  and  left  a  bruise  for  several  days  upon  the  face.  The 
Circuit  Court  also  found  other  instances  proven  of  violent  conduct 
on  the  plaintiff's  part  towards  his  wife,  which  in  some  cases  were 
mitigated  to  some  extent  by  her  improper  and  exasperating  be- 
havior. The  evidence  is  not  before  us,  but  we  must  presume  it 
fully  sustained  the  finding  of  the  court  on  the  facts.  So,  the  simple 
question  presented  is,  Where  it  is  shown  that  each  party  has  been 
guilty  of  an  offence  which  the  statute  has  made  a  ground  for 
divorce  in  favor  of  the  other,  will  the  court  interfere  and  grant 
relief  to  either  offending  party?  We  do  not  perceive  upon  what 
logical  principle  the  court  could  grant  redress  to  the  husband  for 
the  adultery  of  the  wife  when  he  himself  has  been  guilty  of  an 
offence  which  would  give  her  a  right  to  an  absolute  divorce  were 
she  without  fault.  Both  parties  have  violated  the  marriage  con- 
tract, and  can  the  court  look  with  more  favor  upon  the  breach  of 
one  than  the  other?  It  is  an  unquestioned  principle  that  where  one 
party  is  shown  to  have  been  guilty  of  adultery  such  party  cannot 
have  a  divorce  for  the  adultery  committed  by  the  other.  Smith  v. 
Smith,  19  Wis.  522.  Mr.  Bishop  says  there  is  an  entire  concurrence 
of  judicial  opinion  upon  that  point  both  in  England  and  in  this  coun- 
try, and  that  it  makes  no  difference  which  was  the  earlier  offence; 
nor  even  that  the  plaintiff's  act  followed  a  separation  which  took 
place  on  the  discovery  of  the  adultery  of  the  defendant.  2  Bish. 
Mar.  &  Div.  sec.  80.  In  the  forum  of  conscience,  adultery  by  the 
wife  may  be  regarded  as  a  more  heinous  violation  of  social  duty 
than  cruelty  by  the  husband.  But  the  statute  treats  them  as  of  the 
same  nature  and  same  grade  of  delinquency.  It  is  true,  the  cruelty 
of  the  husband  does  not  justify  the  adultery  of  the  wife;  neither 
would  his  own  adultery — but  still  the  latter  has  ever  been  held  a 


RECRIMINATION.  295 

bar.  And  where  both  adultery  and  cruelty  are  made  equal  offences, 
attended  with  the  same  legal  consequences,  how  can  the  court,  in 
the  mutual  controversy,  discriminate  between  the  two,  and  give  one 
the  preference  over  the  other?  It  seems  to  us  that,  as  the  law  has 
given  the  same  effect  to  the  one  offense  as  the  other,  the  court 
should  not  attempt  to  distinguish  between  them,  but  treat  them 
alike  and  hold  one  a  bar  to  the  other.  The  following  authorities 
enforce  this  view  of  the  law  where  the  divorce  law  is  like  our  own: 
Hall  V .  Hall,  4  Allen,  39;  Handy  v.  Handy,  124  Mass.  394;  Nagely. 
Nagel,  12  Mo.  53;  Shackettv.  Shackett,  49  Vt.  195;  Conant  \.  Conant, 
10  Cal.  249;  2  Bish.  Mar.  &  Div.  sees.  78-87.  See,  also,  Adatnsx. 
Adams,  17  N.  J.  Eq.  325;  Yeatman  v.  Yeatman,  L.  R.  i  Prob.  &  Div. 
489;  Lempriere  v.  Let?ipnere,  id.  569.  We,  therefore,  think  the 
circuit  was  right  in  holding  upon  the  facts  that  neither  party  was 
entitled  to  a  divorce,  because  each  was  guilty  of  an  offence  to  which 
the  law  attached  the  same  legal  consequences. 

But  the  plaintiff's  counsel  contends  that  under  sec.  2360,  R.  S. 
which  provides  that  in  an  action  for  divorce  on  the  ground  of  adul- 
tery, although  the  fact  of  adultery  be  established,  the  court  may 
deny  a  divorce  (i)  when  the  offence  shall  appear  to  have  been 
committed  by  the  procurement  or  with  the  connivance  of  the  plain- 
tiff; (2)  where  the  adultery  charged  shall  have  been  forgiven  by  the 
mjured  party,  and  such  forgiveness  be  proved  by  express  proof  or 
by  the  voluntary  cohabitation  of  the  parties  with  knowledge  of  the 
offence;  (3)  when  there  shall  have  been  no  express  forgiveness  and 
voluntary  cohabitation  of  the  parties,  but  the  action  shall  not  have 
been  brought  within  three  years  after  the  discovery  by  the  plaintiff 
of  the  offence  charged.  The  adultery,  he  says,  was  found  in  this 
case,  but  none  of  the  facts, set  forth  in  the  above  three  subdivisions 
were  found  to  exist,  therefore  the  divorce  should  have  been  granted. 
This  provision  is  declaratory  of  the  common  law,  and  gives  the  trial 
court  discretion  to  refuse  a  divorce  for  adultery  where  certain  things 
were  proven  or  shown  to  exist.  It  might  be  claimed,  in  view  of  the 
statutory  provisions,  that  the  court  had  no  discretion  in  the  matter 
where  the  adultery  was  established,  but  was  absolutely  bound  to 
grant  the  divorce,  though  there  had  been  connivance  of  the  parties, 
or  condonation,  or  the  injured  party  had  unduly  delayed  bringing 
the  action  after  a  discovery  of  the  offence.  To  remove  all  doubt 
upon  that  point  the  provision  was  enacted.  It  was  not  intended  to 
do  away  with  the  general  principle  that  one  cannot  have  redress  for 
a  breach  of  the  marriage  contract  which  he  has  violated  by  com- 
mitting a  like  offence  as  that  of  which  he  complains,  but  must  come 


igt)  DIVORCE    AND    SEI'ARATION. 

into  court  with  clean  hands.  This  principle  still  pervades  our  law, 
and  must  be  recognized. 

From  these  views  it  follows  that  the  judgment  of  the  Circuit  Court 
must  be  affirmed. 

By  the  Court  —  Judgment  affirmed.* 


Insufficient  Evidence. 

BILLINGS  V.  BILLINGS. 

1 1  Pick.  461. —  1831. 

On  a  libel  for  divorce  a  vinculo  on  account  of  adultery  committed 
by  the  husband,  it  was  proved  that  the  husband  had  been  out  of  the 
commonwealth  and  separated  from  his  wife  for  fourteen  years,  and 
it  appeared  by  his  own  confessions,  contained  in  a  letter  in  which 
he  expressed  his  penitence  and  desired  a  reconciliation  with  his 
wife,  that  he  had  been  living  with  another  woman,  by  whom  he  had 
five  children.  Morton,  J.,  before  whom  the  trial  took  place,  said  he 
had  advised  with  the  other  judges  on  the  question,  whether  the 
libelee's  confessions  of  adultery  were  alone  sufficient  evidence  to 
authorize  a  decree  of  divorce;  that  the  reason  for  requiring  other 
evidence  is,  in  general,  to  prevent  collusion;  that  the  circumstances 
here  proved  by  other  evidence  than  the  confessions  showed  there 
could  be  no  collusion;  and  that  all  the  court  were  of  opinion  that 
the  proof  of  the  adultery  was  sufficient. 

Divorce  decreed. 


CUMMINS  V.  CUMMINS. 

47  Neb.  872. —  1896. 

Error  from  the  District  Court  of  Douglas  county. 

No  appearance  for  defendant  in  error. 

Irvine,  C.  The  plaintiff  in  error  brought  this  action  to  procure 
a  divorce  from  the  defendant  in  error.  Service  was  had  by  publica- 
tion. There  was  no  appearance  by  the  defendant  in  error,  but  on 
the  evidence  the  court  found  for  the  defendant  and  dismissed  the 
case.  The  errors  assigned  are  that  the  judgment  is  not  sustained  by 
sufficient  evidence;  that  it  is  contrary  to  law;  and  that  the  court 
erred  in  overruling  the  motion  for  a  new  trial.  The  grounds  assigned 
in  this  motion  are  that  the  judgment  is  not  sustained  by  sufficient 

'  As  to  recrimination  in  a  jurisdiction  where  only  adultery  is  ground  for  abso- 
lute divorce  and  cruelty  is  ground  for  limited  divorce,  see  [/hlmannv.  Uhlmann, 
17  Abb.  N.  C.  (N.  Y.)  236,  and  Griffin  v.  Griffin,  23  How.  Pr.  (N.  Y  '  183. 
Recrimination  of  cruelty  is  not  sufhcient  to  bar  divorce  for  a(iultery 


INSUFFICIENT   EVIDENCE.  297 

evidence,  and  that  it  is  contrary  to  law.  We  have,  therefore,  pre- 
sented, in  effect,  simply  the  sufficiency  of  the  evidence.  The  ground 
on  which  the  divorce  was  claimed  was  cruelty  practiced  by  the  wife 
against  the  husband.  The  husband's  testimony  is  to  the  effect  that 
the  defendant  had  always  been  harsh  and  unkind  to  him;  that  she 
had  refused  to  cook  for  him,  wash  for  him,  and  mend  his  clothes; 
that  she  had  denied  him  sexual  intercourse,  and  that  certain  events 
had  persuaded  him  that  she  had  attempted  to  poison  him.  The  last 
charge,  if  true,  undoubtedly  constitutes  cruelty  (i  Nelson,  Divorce 
and  Separation,  sees.  266,  308),  but  the  sufficiency  of  the  evidence 
to  establish  an  attempt  to  poison  was  in  the  first  instance  for  the 
trial  court,  as  was  the  sufficiency  of  the  evidence  on  other  branches 
of  this  case.  The  evidence  on  this  subject  was  that,  after  two  suc- 
cessive meals,  the  plaintiff  was  taken  violently  sick.  Thereafter  he 
detected  some  foreign  substance  in  his  coffee  cup,  and  observed  his 
wife  pouring  something  from  a  paper  into  the  coffee.  He  found 
some  article  in  her  possession  which  he  supposed  to  be  the  same 
substance,  but  he  had  made  no  effort  to  ascertain  its  character. 
The  parties  had  three  children,  aged  seventeen,  nineteen,  and 
twenty-two  years.  The  plaintiff,  it  appears,  knew  where  these  chil- 
dren were.  They  were  living  in  the  household  at  the  time  of  these 
events.  They  remained  with  their  mother  after  the  separation  and 
their  testimony  was  not  produced.  The  plaintiflf  was  corroborated 
in  some  parts  of  his  testimony  by  a  woman  who  had  lived  next  door 
to  the  parties  in  Kansas,  and  who  testified  that  she  had  done  wash- 
ing for  the  plaintiff  and  had  heard  the  defendant  use  harsh  and 
abusive  language  toward  him.  His  testimony  was  not  corroborated 
in  other  particulars.  It  has  been  said  that  the  state  is  a  third  party 
to  all  divorce  cases.  It  is  not  true  that  a  petition  stands  confessed 
because  not  answered;  nor  is  the  judge  who  tries  a  divorce  case 
obliged  to  find  for  the  plaintiff,  simply  because  he  testifies  to  a 
state  of  facts,  which,  if  believed,  would  warrant  a  decree  in  his 
favor.  The  judge  should  be  satisfied  that  there  is  no  collusion; 
that  the  case  is  prosecuted  in  good  faith,  and  that  a  cause  of  action 
exists.  This  case  was  begun  scarcely  seven  months  from  the  time 
the  plaintiff  came  to  the  state,  which  was  the  time  of  separation.  He 
had  then  left  his  wife  and  his  three  children  behind  him,  the  chil- 
dren choosing  to  remain  with  the  mother.  The  parties  had  lived 
together  for  more  than  twenty-two  years.  The  charges  of  harshness 
and  unkindness  were  proved  only  in  the  most  general  and  vaguest 
way.  The  charge  that  the  wife  had  refused  to  do  the  cooking, 
laundry  work  and  mending  for  the  family  was  probably  not  the 
charge  of  a  very  great  offence,  in  view  of  plaintiff's  testimony  that 


298  DIVORCE   AND    SEPARATION. 

his  earnings  were  $140  per  month.  The  charge  of  denying  the  plain- 
tiff sexual  intercourse  was  as  vaguely  substantiated  as  the  charge  of 
unkind  language.  It  did  not  appear  for  what  period  or  under  what 
circumstances  there  had  been  such  denial.  The  charge  of  poison- 
ing was  in  no  degree  corroborated,  while  the  evidence  showed  that 
through  the  children  and  the  services  of  a  chemist  corroboration 
might  have  been  obtained  had  the  charge  been  true.  If  the  trial 
judge  had  seen  fit  to  grant  a  divorce  upon  the  testimony,  we 
would  not  disturb  his  action,  but  in  such  cases  so  much  depends 
upon  the  manner  and  demeanor  of  the  witnesses  that,  in  view  of  the 
weakness  of  the  evidence  in  this  case,  while  it  would  be  sufficient  to 
support  a  different  finding,  we  cannot  disturb  the  finding  which  was 
made.  2  Nelson,  Divorce  and  Separation,  sec.  809. 
Judgment  affirmed.' 


Alimony. 

HENINGER  v.   HENINGER. 

90  Va.  271. —  1893. 

Lewis,  P.  This  was  suit  for  a  divorce  from  bed  and  board,  on 
the  ground  of  cruelty  on  the  part  of  the  husband,  the  defendant  be- 
low and  appellant  here.  The  Circuit  Court  decreed  a  divorce,  and 
gave  the  custody  of  the  five  infant  children  to  the  wife.  It  also  by 
a  subsequent  decree,  ordered  the  defendant  to  provide  for  them  a 
suitable  home,  and  to  pay,  for  permanent  alimony  and  the  support 
and  education  of  the  children,  until  the  further  order  of  the  court, 
a  thousand  dollars  a  year,  in  two  semi-annual  instalments. 

'  "  We  agree  with  the  learned  judges  of  the  General  Term  in  their  low  esti- 
mate of  the  value  in  divorce  cases  of  the  evidence  of  prostitutes  and  private 
detectives.  The  courts  have  come  to  regard  the  uncorroborated  evidence  of  such 
witnesses  as  insufficient  to  break  the  bonds  of  matrimony.     {Sopwith  v.  Sopwith, 

4  Sw.  &  Tr.  246;  Ginger  v.  Ginger,  L.  R.,  i  P.  &  D.  3S;  Banta  v.  Banta,  3  Edw. 
Ch.  295;    Turney  v.   Turney,  4  Id.  566;  Piatt  v.  Piatt,  5   Daly,  295;  Anonymous, 

5  Robt.  611.)  The  consequences  which  follow  a  judgment  of  divorce  are  so  serious 
and  momentous  that  such  a  judgment  should  not  be  granted  without  the  evi- 
dence which  furnishes  the  basis  therefor,  is,  after  very  careful  scrutiny,  satisfac- 
tory and  such  as  can  command  the  confidence  of  a  careful,  prudent  and  cautious 
judge.  But  the  illicit  amours  of  faithless  husbands  and  wives  are  usually  clan- 
destine, and  their  wicked  paths  are  hidden  from  public  observation;  and  hence 
courts  must  not  be  duped,  and  they  must  take  such  evidence  as  the  nature  of 
the  case  permits,  circumstantial,  direct  or  positive,  and  bringing  to  bear  upon  it 
the  experiences  and  observations  of  life,  and  thus  weighing  it  with  prudence  and 
care,  give  effect  to  its  just  preponderance." — Earl,  J.,  in  Moller  v.  Moller,  115 
N.  Y.  466,  468.  But  see  Winston  v.  Winston,  165  N.  Y.  553,  that  the  above 
ptntement,  as  to  the  uncorroborated  evidence  of  such  witnesses,  is  not  a  rule  of 
evidence,  but  a  rule  for  the  "guidance  of  judicial  con=rience." 


ALIMONY.  299 

The  evidence  in  support  of  the  charges  of  cruelty  is  ample  and 
conclusive,  and  there  is  no  doubt  that  a  divorce  and  the  custody  of 
the  children  were  rightly  granted  to  the  wife.  The  defence  set  up 
in  the  answer  that  the  complainant  was  persuaded  by  certain  of  her 
relatives  hostile  to  the  defendant  to  bring  the  suit  merely  to  harass 
him  and  get  possession  of  his  property,  and  that  the  charge  of 
cruelty  is  false  —  is  not  only  not  sustained,  but  is  clearly  disproven. 

Unfortunately,  however,  the  record,  while  full  enough  on  these 
points,  does  not  contain  sufficient  to  enable  us  to  satisfactorily  de- 
termine what  is  a  proper  allowance  for  permanent  alimony  and  the 
support  and  benefit  of  the  children. 

The  appellant  is  a  farmer  and  the  owner  of  two  tracts  of  land  — 
one  containing  596  acres,  and  the  other  2,700  acres  —  situate  in 
Tazewell,  only  a  comparatively  small  portion  of  which  is  cleared. 
The  residue  is  unimproved,  much  of  it  being  "  wild  mountain  land." 
The  cleared  portion,  however,  is  valuable;  but  what  is  its  value,  or 
what  ought  to  be  taken  as  a  fair  estimate  of  the  appellant's  income, 
is  not  shown  with  any  degree  of  certainty  or  precision. 

One  of  the  complainant's  most  intelligent  witnesses,  a  farmer, 
who  lives  in  the  immediate  neighborhood,  estimates  the  annual 
value  of  both  tracts  at  $1,100,  from  which  sum  he  deducts  $300 
for  taxes,  repairs,  etc.,  leaving  $800  as,  in  his  judgment,  the  net 
annual  value.  Other  witnesses  put  it  lower,  the  estnnate  of  one  or 
more  of  them  not  exceeding  five  or  six  hundred  dollars.  It  appears 
that  shortly  before  the  commencement  of  the  suit  the  appellant  sold 
the  greater  part  o"f  his  personalty  for  the  purpose,  as  he  says,  of 
paying  his  debts.  The  value  of  the  residue  does  not  appear.  The 
commissioner,  who  was  directed  to  make  certain  inquiries  in  the 
cause,  reported,  in  general  terms,  that  "  the  property  now  owned  " 
by  the  appellant  is  worth  $30,000;  but  he  says  nothing,  specifically, 
as  to  the  income.  In  1890,  before  the  suit  was  commenced,  the 
appellant  contracted  to  sell  the  land  for  $45,000,  but  the  purchaser 
has  refused  to  take  it,  and  the  matters  in  controversy  between  them 
in  regard  to  the  sale  have  not  yet  been  settled.  The  case  has  been 
argued  for  the  appellee  largely  on  the  assumption  that  the  appellant 
is  worth  $60,000,  and  that  the  annual  value  of  his  estate  ought  to  be 
put  at  four  per  cent  on  that  sum,  or  $2,400;  but  this  assumption, 
whatever  the  fact  may  be,  is  not  warranted  by  the  record. 

In  respect  to  alimony,  the  general  rule  is  that  the  income  of  the 
husband,  however  derived  or  derivable,  is  the  fund  from  which  the 
allowance  is  made.  2  Bish.  Mar.  &  Div.  (5th  ed.)  sec.  447;  Bailey  v. 
Bailey,  21  Gratt.  43;  Cralle  v.  Cralle,  84  Va.  198.  In  his  recent 
work  on  Marriage,  Divorce  and   Separation,  sec.    1006,   Bishop,   in 


300  DIVORCE   AND    SEPARATION. 

treating  of  the  facts  upon  which  the  amount  of  permanent  alimony 
is  determined,  amplifies  the  rule,  thus:  "In  exercising,"  he  says, 
"  the  judicial  discretion  which  regulates  the  amount  of  the  perma- 
nent alimony,  the  judge  should  take  into  contemplation  the  past  con- 
duct of  the  parties,  respectively,  the  source  of  the  husband's  prop- 
erty, what  persons,  if  any,  each  is  under  a  legal  duty  to  support, 
the  earnings  and  acquiring  capabilities  of  each,  the  wife's  pecuniary 
means  equally  with  the  husband's,  the  health  of  each,  and  their  re- 
spective ages;  and  especially,  but  not  exclusively,  he  should  con- 
sider what  sum,  chargeable  upon  the  faculties  of  the  erring  hus- 
band, will  leave  the  financial  condition  of  the  innocent  wife  not  in- 
ferior to  what  it  would  be  if  his  conduct  had  been  correct."  And 
he  adds  that  as  every  injury  is,  in  law,  entitled  to  its  pecuniary  com- 
pensation, the  wife  should  have,  in  addition  to  the  maintenance  thus 
appearing,  something  for  her  physical  and  mental  sufferings,  and 
the  loss  of  the  husband's  society. 

So,  also,  the  amount  for  maintenance  of  the  minor  children,  when, 
as  in  the  present  case,  they  are  assigned  to  the  wife,  depends,  not 
only  on  their  needs,  but  on  the  husband's  fortune  and  station  in 
life,  and  all  the  circumstances  of  the  particular  case.  As  to  this 
matter,  as  in  the  case  of  alimony,  the  court,  with  all  the  attainable 
lights  before  it,  must  exercise  a  sound  discretion.  Harris  v.  Harris^ 
31  Gratt.  13;  Bailey  V .  Bailey,  supra. 

The  same  considerations  apply  in  regard  to  the  education  of  the 
children.  This,  however,  is  denied  by  the  appellant,  on  the  ground 
that  parents  are  not  compellable  to  educate  their  children.  It  is 
true  that  while  the  elementary  writers  include  among  the  duties  of 
parents  to  their  children  that  of  education,  it  is  a  duty  of  imperfect 
obligation.  Nevertheless,  as  Blackstone  observes,  it  is  a  duty  pointed 
out  by  reason,  and  of  far  the  greatest  importance  of  any.  Chancellor 
Kent  takes  the  same  view,  and  adds  the  remark  that  "  a  parent  who 
sends  his  son  into  the  world  uneducated  does  a  great  injury  to  man- 
kind, as  well  as  to  his  own  family,  for  he  defrauds  the  community  of 
a  useful  citizen,  and  bequeaths  to  it  a  nuisance."    2  Kent's  Com.  195. 

It  would  be  strange,  then,  if  the  effect  of  a  decree,  granting  a  di- 
vorce, and  assigning  the  custody  of  the  infant  children  to  a  suitable 
person,  were  held  to  relieve  the  offending  parent  of  a  duty  he  owes 
both  to  his  offspring  and  to  society,  when  he  has  the  means  to 
fulfill  it.  If  this  were  the  effect  of  the  decree,  the  offender  would 
make  advantage  of  his  own  wrong,  and  the  interference  of  the  law, 
intended  for  the  benefit  of  the  children,  might  work  an  entirely 
different  result. 

The  statute,  now  carried  into  section  3263  of  the  Code,  authorizes 


ALIMONY.  301 

the  court  granting  a  divorce  to  make  "  such  further  decree  as  it  shall 
deem  expedient  concerning  the  estate  and  maintenance  of  the  par- 
ties, or  either  of  them,  and  the  care,  custody,  and  maintenance  of 
their  minor  children;  "  and  while  nothing  is  said  in  express  terms 
about  education,  yet  the  evident  purpose  of  the  legislature  was  to 
give  to  the  court  the  largest  discretion  in  respect  to  the  estate  of  the 
parties,  and  not  to  relieve  the  offending  parent  of  any  duty,  moral, 
social,  or  otherwise.  Under  a  statute  authorizing  the  court  to 
"  make  such  disposition  of  and  provision  for  the  children  as  shall 
appear  most  expedient,"  the  jurisdiction  of  the  court  to  provide  for 
their  education,  in  a  manner  suitable  to  the  parent's  means  and 
station  in  life  has  been  held  to  be  unquestionable;  and  the  language 
of  our  statute  is  little,  if  any,  less  comprehensive.  2  Bish.  Mar., 
Div.  &  Sep.,  sec.  1214. 

For  the  reasons,  however,  already  stated,  the  case  must  be  sent 
back  for  a  further  reference  to  a  commissioner  in  order  that  the  court 
may  be  put  in  possession  of  all  the  facts  and  circumstances  essential 
to  an  equitable  determination  of  the  rights  of  the  parties.  Mean- 
while the  decree  of  the  9th  of  December,  1891,  making  temporary 
provision  for  the  wife  and  children,  /.  ^.,.  requiring  the  appellant, 
among  other  thigigs,  to  pay  eighty  dollars  monthly  for  their  main- 
tenance, will  remain  in  force.  And  when  the  case  shall  have  been 
thus  developed,  it  will  be  time  enough  to  finally  pass  upon  the 
question  raised  here  by  the  appellee  as  to  an  additional  allowance  in 
the  way  of  counsel  fees. 

The  appellant  will  pay  the  costs  of  this  appeal.  Affirmed  in  part 
and  reversed  in  part.* 


Taylor,  J.,  IN  H ADDON  v.  HADDON. 

36  Fla.  413,  417.— 1895. 

The  law  seems  to  be  well  settled' that  two  things  must  concur,  and 
must  be  made  to  appear  before  a  court  is  justified  in  making  any 
allowance  to  the  wife  in  divorce  proceedings  for  temporary  alimony 
and  for  counsel  fees,  (i)  A  necessity  therefor  must  appear  on  the 
part  of  the  wife,  from  her  want  of  means,  or  of  sufficient  means,  to 
maintain  herself  during  the  litigation  and  with  which  to  employ 
counsel;  (2)  and  it  must  also  appear  that  the  husband  has  the  pecu- 
niary means  to  supply  that  necessity.  2  Bishop  on  Marriage  and 
Divorce,  sec.  929  et  seq.\  Kenemer  v.  Kenemer^  26  Ind.  330;  Porter 
V.  Porter,  41  Miss.  116;  Westerfidd  \ .  Westerfield,  i()  N.  J.  Eq.  195; 
Maxwell  v.    Maxwell^    28    Hun,    566;  Ross  v.    Ross,    47    Mich.    185; 

'  As  to  reduction  of  alimony  upon  re-marriage  of  the  wife,  see  Southworth  v. 
Treadwell,  168  Mass    511. 


302  DIVORCE    AND    SEl'AKA  1 K  J.N. 

Turner  v.  Turner^  80  Cal.  141  ;  Chairesw  Chair es^  10  Flu.  30S;  Under- 
woods. Underwood,  12  Fla.  434.  It  is  further  well  settled  that  the 
granting  or  withholding  of  such  allowances  is  within  the  discretion 
of  the  court  to  whom  the  application  therefor  is  made,  but  this  dis- 
cretion is  not  an  arbitrary  one,  but  is  a  judicial  discretion  to  be 
exercised  in  accordance  with  established  rules  of  law  wisely  adapted 
to  the  facts  apparent  in  each  particular  case;  and  when  the  discre- 
tion is  abused,  it  is  a  matter  from  which  an  appellate  court  will 
grant  relief.  Cooke  v.  Cooke,  2  Phillim.  (Eng.  Eccl.)  40;  Sanchez  v. 
Sanchez,  21  Fla.  346. 

We  think  the  order  appealed  from  was  one  in  violation  of  these 
established  principles.  The  undisputed  facts  showed  that  the  com- 
plainant wife  here  had  equally  as  much,  in  fact  considerably  more, 
property  and  available  means  than  the  defendant  husband,  and  that 
she  acquired  all  of  it  from  him  within  a  year  and  a  half  before  the 
bringing  of  her  suit  for  divorce;  and  while  she  alleges  that  she  has 
to  support  the  children,  it  seems,  if  it  be  true,  to  be  a  voluntarily 
assumed  burden  upon  her  part.  The  requisite  necessity  upon  her 
part  for  the  allowance  was  conclusively  shown  to  be  absent,  and  her 
application  therefor  should  have  been  denied. 


HINDS  V.   HINDS. 
80  Ala.  224. —  1885. 

The  original  bill  in  this  case  was  exhibited,  on  6th  January,  1885, 
by  Adeline  A.  Hinds,  by  next  friend,  against  her  husband,  Daniel 
Hinds,  charging  his  desertion  and  abandonment  of  complainant 
without  making  any  provision  for  her  maintenance,  and  praying  that 
reasonable  alimony  be  decreed  her  out  of  his  estate.  The  bill  was 
subsequently  amended  so  as  to  make  parties  defendant  thereto,  Mrs. 
W.  F.  Hanna  and  Mrs.  Ephraim  Allen,  children  of  respondent,  to 
whom  he  had,  as  alleged,  fraudulently  transferred  substantially  all 
his  property,  "  in  deliberate  anticipation  of  oratrix's  bill  of  com- 
plaint." The  defendant.  Hinds,  demurred  to  the  bill  upon  the 
grounds,  inter  alia,  that  there  was  ""  no  bill  pending  for  divorce 
a  vinculo  matrimonii;''  that  the  bill  would  not  lie  "  for  alimony  alone ;" 
and  that  there  was  a  misjoinder  of  parties  defendant. 

The  decree  of  the  chancellor  overruling  the  demurrers  is  here 
assigned  as  error. 

SoMERViLLE,  J.  The  first  question  raised  by  the  demurrer  to  the 
complainant's  bill  is,  whether  courts  of  equity  in  this  state  possess 
jurisdiction    to   grant   alimony,  in   the   nature   of  maintenance,  to  a 


ALIMONY.  303 

wife,  unconnected  with  any  proceedings  for  divorce.  The  bill 
alleges  that  the  defendant  abandoned  the  complainant,  without  any 
just  excuse,  and  refused  to  live  with  her,  or  to  make  any  provision 
for  her  support  and  maintenance.  The  prayer  is  for  alimony,  with-" 
out  seeking  a  divorce. 

This  question  was  fully  discussed  by  this  court  in  the  case  of  Glower 
v.  Glover^  16  Ala.  440,  where,  after  an  elaborate  review  of  the  author- 
ities, the  conclusion  was  reached  that  courts  of  equity  exercised  a 
jurisdiction  over  the  subject  of  alimony,  not  merely  incidental,  but 
original,  in  cases  where  the  wife's  right  to  a  maintenance  exists. 
The  broad  ground  upon  which  the  jurisdiction  is  made  to  rest  is 
the  unquestionable  duty  of  the  husband  to  support  the  wife,  and  the 
inadequacy  of  legal  remedies  to  enforce  this  duty.  The  doctrine  of 
this  case  was  followed  in  Minis  v.  Mi?Hs,  33  Ala.  98,  and  again  in 
Wray  v.   Wray,  lb.  187. 

It  may  be  admitted  that  the  weight  of  authority,  both  in  England 
and  in  this  country,  is  opposed  to  the  doctrine  adopted  in  these 
cases,  but  the  reasoning  upon  which  this  doctrine  rests  is  logical  and 
sound,  and  is  supported  by  many  well-considered  decisions  of  our 
most  respectable  courts.  Among  these  may  be  mentioned  the  courts 
of  Mississippi,  Iowa,  Kentucky,  California,  South  Carolina  and  N\r- 
g\n\a.  —  Garland  v.  Garland,  50  Miss.  694;  Graves  v.  Graves,  36 
Iowa,  310;  Logan  v.  Logan,  2  B.  Monroe,  142;  Galland  v.  Galland, 
38  Cal.  265;  Prather  v.  Prather,  4  Desau's  Eq.  33;  Rhame  v.  Rhaine, 

1  McCord  Ch.  197;  Piircellw.  Purcell,  4  Hen.  &  Munf.  507;  Almond 
V.  Almond,  4  Rand.  662. 

Mr.  Justice  Story,  in  commenting  on  the  rule  settled  in  these 
cases,  observes,  that  "  there  is  so  much  good  sense  and  reason  in 
this  doctrine,  that  it  might  be  wished  it  were  generally  adopted." 

2  Story's  Eq.  Jur.  sec.  1423a.  See,  also,  Schouler  on  Husband  and 
Wife,  sec.  485;  2  Cord,  on  Leg.  &  Eq.  Rights  Mar.  Women  (2d  ed.), 
sec.  958  et  seq.  Some  of  the  states  have  accordingly  seen  fit  to  adopt 
it  by  statutory  enactment,  thus  affirming  confidence  in  its  wisdom  and 
sound  policy.  Without  being  unmindful  of  the  force  of  the  criticisms 
pronounced  upon  these  cases  by  recent  law  writers,  we  are  not  wil- 
ling to  depart  from  or  overturn  the  principle  established  by  them, 
at  this  late  day.      3  Pom.  Eq.  Jur.  sees.  1120,  1299. 

The  wife's  claim  to  alimony  is  an  equitable  demand  against  the 
husband,  and  there  can  be  no  doubt  of  her  right  to  attack  for  fraud 
any  transfers  or  alienations  of  property  made  by  him  with  intent  to 
defeat  her  claim,  and  that  such  fraudulent  grantees  may  properly  be 
made  defendants  to  the  suit  for  alimony.  Wait  on  Fraud.  Convey- 
ances, p.  140,  sec.  90;    Turnery.   Turner,  44  Ala.  437. 


304  DIVORCE   AND    SEPARATION. 

The  bill  was  not  rendered  multifarious  by  reason  of  the  joinder  of 
the  several  grantees  as  co-defendants  in  the  suit.  They  are  all  gran- 
tees, or  donees,  of  the  same  person.  The  several  transfers  spring 
out  of  the  alleged  common  purpose. to  defraud  the  complainant,  and 
the  object  and  the  purpose  of  the  suit  is  single  in  seeking  satisfac- 
tion of  the  complainant's  demand  out  of  the  debtor's  property  which 
is  alleged  to  have  been  fraudulently  conveyed.  Russell  v.  Garrett, 
75  Ala.  350;  Lehman  v.  Meyer,  67  Ala.  396;  Halstead  v.  Shepard,  23 
Ala.  558;  Fellozasv.  Felloias,  15  Amer.  Dec.  428-9. 

The  demurrer  to  the  bill  was  properly  overruled,  and  the  decree  of 
the  chancellor  overruling  it  is  afifirmed.' 


Legislative  Divorce. 
MAYNARD  v.  HILL. 

125  U.  S.  190. — 1887. 

Suit  in  equity  to  charge  the  defendants,  as  trustees  of  certain 
lands  in  Washington  Territory  and  compel  a  conveyance  thereof  to 
plaintiffs.  Appeal  to  the  United  States  Supreme  Court  from  a  judg- 
ment of  the  Territorial  Supreme  Court  sustaining  the  defendant's 
demurrer  and  dismissing  the  complaint. 

David  S.  Maynard  and  Lydia,  his  wife,  lived  in  Ohio  in  1850. 
Two  children,  Henry  Maynard  and  Francis  Patterson,  the  plaintiffs 
in  this  suit,  were  the  only  issue  of  that  marriage.  In  1850,  David 
deserted  his  wife  and  family,  and  on  September  i6th,  1850,  took  up 
his  residence  in  Oregon  Territory,  in  that  part  which  is  now  Wash- 
ington Territory,  and  resided  there  until  his  death,  intestate,  in 
1873.  Lydia  A.  died  intestate  in  1879.  April  3d,  1852,  he  took  up 
public  land  as  a  married  man  under  the  act  of  Congress  of  Septem- 
ber 27th,  1850.  December  22d,  1852,  an  act  was  passed  by  the  leg- 
islative assembly  of  the  territory  purporting  to  divorce  absolutely 
David  S.  Maynard  from  Lydia.  About  January  15th,  1853,  he  mar- 
ried Catharine  Brashears,  and  they  lived  together  until  his  death. 
April  30th,  1856,  he  made  proof  of  his  four  years'  residence  on  the 
land,  and  in  accordance  with  the  statute  a  certificate  was  issued  to 
him  apportioning  the  west  half  of  the  land  to  him  and  the  east  half  to 
his  wife  Catharine.  This  certificate  was  afterwards  annulled  by  the 
commissioner  of  the  land  office  so  far  as  the  east  half  was  concerned, 
and  it  was  decided  by  the   commissioner  that  neither  wife  was  en- 

'  But,  after  a  decree  of  absolute  divorce,  the  former  wife  cannot  maintain  a 
bill  for  alimony  against  the  former  husband. —  Downey  v.  Downey,  98  Ala.  373. 


LEGISLATIVE   DIVORCE,  305 

titled  to  it.  The  first  wife  was  not  entitled  to  it  because  at  the  time 
of  the  divorce  the  husband  had  only  an  inchoate  interest  in  the 
land,  his  future  vested  right  being  dependent  upon  past  and  future 
compliance  with  the  statute,  and  she,  therefore,  never  had  a  vested 
interest.  The  second  wife  was  not  entitled  because  she  was  not  his 
wife  on  December  ist,  1850,  or  within  one  year  from  that  date,  which 
was  a  prerequisite  under  the  statute.  Subsequently  the  east  half 
was  again  treated  as  public  land  and  taken  up  by  Hill  and  Lewis,  the 
defendants,  against  whom  this  suit  is  brought  by  the  plaintiffs,  the 
heirs-at-law  of  the  first  wife. 

Mr.  Justice  Field.  As  seen  by  the  statement  of  the  case,  two 
questions  are  presented  for  our  consideration:  first,  was  the  act 
of  the  legislative  assembly  of  the  territory  of  Oregon  of  the  22d  of 
December,  1852,  declaring  the  bonds  of  matrimony  between  David 
S.  Maynard  and  his  wife  dissolved,  valid  and  effectual  to  divorce 
the  parties;  and,  second,  if  valid  and  effectual  for  that  purpose,  did 
such  divorce  defeat  any  rights  of  the  wife  to  a  portion  of  the  dona- 
tion claimed. 

The  act  of  Congress  creating  the  territory  of  Oregon  and  estab- 
lishing a  government  for  it,  passed  on  the  14th  of  August,  1848, 
vested  the  legislative  power  and  authority  of  the  territory  in  an 
assembly,  consisting  of  two  boards,  a  Council  and  a  House  of  Rep- 
resentatives. 9  Stat.  323,  c.  177,  sec.  4.  It  declared,  sec.  6,  that 
the  legislative  power  of  the  territory  should  "  extend  to  all  rightful 
subjects  of  legislation  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States,"  but  that  no  law  should  be  passed  inter- 
fering with  the  primary  disposal  of  the  soil;  that  no  tax  should  be 
imposed  upon  the  property  of  the  United  States;  that  the  property 
of  non-residents  should  not  be  taxed  higher  than  the  property  of  the 
residents;  and  that  all  the  laws  passed  by  the  assembly  should  be 
submitted  to  Congress,  and  if  disapproved  should  be  null  and  of  no 
effect.  It  also  contained  various  provisions  against  the  creation  of 
institutions  for  banking  purposes,  or  with  authority  to  put  into  cir- 
culation notes  or  bills,  and  against  pledging  the  faith  of  the  people 
of  the  territory  to  any  loan.  These  exceptions  from  the  grant  of 
legislative  power  have  no  bearing  upon  the  questions  presented. 
The  grant  is  made  in  terms  similar  to  those  used  in  the  act  of  1836, 
under  which  the  territory  of  Wisconsin  was  organized.  It  is  stated 
in  Clinton  v.  Englebrecht,  13  Wall.  434,  444,  that  that  act  seemed  to 
have  received  full  consideration;  and  from  it  all  subsequent  acts  for 
the  organization  of  territories  have  been  copied,  with  few  and  incon- 
siderable variations.  There  were  in  the  Kansas  and  Nebraska  acts, 
[Domestic  Relations — 20. 1 


3o6  DIVORCE   AND   SEPARATION. 

as  there  mentioned,  provisions  relating  to  slavery,  and  in  some  other 
acts  provisions  growing  out  of  local  circumstances.  With  these, 
and  perhaps  other  exceptions  not  material  to  the  questions  before 
us,  the  grant  of  legislative  power  in  all  the  acts  organizing  terri- 
tories, since  that  of  Wisconsin,  was  expressed  in  similar  language. 
The  power  was  extended  "  to  all  rightful  subjects  of  legislation," 
to  which  was  added  in  some  of  the  acts,  as  in  the  act  organizing  the 
territory  of  Oregon,  "  not  inconsistent  with  the  Constitution  and 
laws  of  the  United  States,"  a  condition  necessarily  existing  in  the 
absence  of  express  declaration  to  that  effect. 

What  were  "  rightful  subjects  of  legislation  "  when  these  acts 
organizing  the  territories  were  passed,  is  not  to  be  settled  by  refer- 
ence to  the  distinctions  usually  made  between  legislative  acts  and 
such  as  are  judicial  or  administrative  in  their  character,  but  by  an 
examination  of  the  subjects  upon  which  legislatures  had  been  in  the 
practice  of  acting  wnth  the  consent  and  approval  of  the  people  they 
represented.  A  long  acquiescence  in  repeated  acts  of  legislation  on 
particular  matters  is  evidence  that  those  matters  have  been  generally 
considered  by  the  people  as  properly  within  legislative  control. 
Such  acts  are  not  to  be  set  aside  or  treated  as  invalid,  because,  upon 
a  careful  consideration  of  their  character,  doubts  may  arise  as  to  the 
competency  of  the  legislature  to  pass  them.  Rights  acquired,  or 
obligations  incurred  under  such  legislation  are  not  to  be  impaired 
because  of  subsequent  differences  of  opinion  as  to  the  department  of 
government  to  which  the  acts  are  properly  assignable.  With  special 
force  does  this  observation  apply,  when  the  validity  of  acts  dissolv- 
ing the  bonds  of  matrimony  is  assailed,  the  legitimacy  of  many  chil- 
dren, the  peace  of  many  families,  and  the  settlement  of  many  estates 
depending  upon  its  being  sustained.  It  will  be  found  from  the 
history  of  legislation  that,  whilst  a  general  separation  has  been  ob- 
served between  the  different  departments,  so  that  no  clear  encroach- 
ment by  one  upon  the  province  of  the  other  has  been  sustained,  the 
legislative  department,  when  not  restrained  by  constitutional  pro- 
visions and  a  regard  for  certain  fundamental  rights  of  the  citizen 
which  are  recognized  in  this  country  as  the  basis  of  all  government, 
has  acted  upon  everything  within  the  range  of  civil  government.  Ij)an 
Association  v.  Topeka,  20  Wall.  655,  663.  Every  subject  of  interest  to 
the  community  has  come  under  its  direction.  It  has  not  merely 
prescribed  rules  for  future  conduct,  but  has  legalized  past  acts,  cor- 
rected defects  in  proceedings,  and  determined  the  status,  conditions, 
and  relations  of  parties  in  the  future. 

Marriage,  as  creating  the  most  important  relation  in  life,  as  having 
more  to  do  with  the  morals  and   civilization  of  a  people  than  any 


LEGISLATIVE   DIVORCE.  307 

other  institution,  has  always  been  subject  to  the  control  of  the 
legislature.  That  body  prescribes  the  age  at  which  parties  may 
contract  to  marry,  the  procedure  or  form  essential  to  constitute 
marriage,  the  duties  and  obligations  it  creates,  its  effects  upon  the 
property  rights  of  both,  present  and  prospective,  and  the  acts  which 
may  constitute  grounds  for  its  dissolution. 

It  is  conceded  that  to  determine  the  propriety  of  dissolving  the 
marriage  relation  may  involve  investigations  of  a  judicial  nature 
which  can  properly  be  conducted  by  the  judicial  tribunals.  Yet 
such  investigations  are  no  more  than  those  usually  made  when  a 
change  of  the  law  is  designed.  They  do  not  render  the  enactment, 
which  follows  the  information  obtained,  void  as  a  judicial  act  because 
it  may  recite  the  cause  of  its  passage.  Many  causes  may  arise, 
physical,  moral,  and  intellectual  —  such  as  the  contracting  by  one 
of  the  parties  of  an  incurable  disease,  like  leprosy,  or  confirmed  in- 
sanity or  hopeless  idiocy,  or  a  conviction  of  a  felony  —  which  would 
render  the  continuance  of  the  marriage  relation  intolerable  to  the 
other  party  and  productive  of  no  possible  benefit  to  society.  When 
the  object  of  the  relation  has  been  thus  defeated,  and  no  jurisdiction 
is  vested  in  the  judicial  tribunals  to  grant  a  divorce,  it  is  not  per- 
ceived that  any  principle  should  prevent  the  legislature  itself  from 
interfering  and  putting  an  end  to  the  relation  in  the  interest  of  the 
parties  as  well  as  of  society.  If  the  act  declaring  the  divorce  should 
attempt  to  interfere  with  rights  of  property  vested  in  either  party, 
a  different  question  would  be  presented. 

When  this  country  was  settled,  the  power  to  grant  a  divorce  from 
the  bonds  of  matrimony  was  exercised  by  the  Parliament  of  England. 
The  ecclesiastical  courts  of  that  country  were  limited  to  the  grant- 
ing of  divorces  from  bed  and  board.  Naturally,  the  legislative 
assemblies  of  the  colonies  followed  the  example  of  Parliament  and 
treated  the  subject  as  one  within  their  province.  And  until  a  recent 
period  legislative  divorces  have  been  granted,  with  few  exceptions, 
in  all  the  states.  Says  Bishop,  in  his  Treatise  on  Marriage  and 
Divorce:  "  The  fact  that  at  the  time  of  the  settlement  of  this  coun- 
try legislative  divorces  were  common,  competent,  and  valid  in  Eng- 
land, whence  our  jurisprudence  was  derived,  makes  them  conclusively 
so  here,  except  where  an  invalidity  is  directly  or  indirectly  created 
by  a  written  constitution  binding  the  legislative  power."  Sec.  664. 
Says  Cooley,  in  his  Treatise  on  Constitutional  Limitations:  "The 
granting  of  divorces  from  the  bonds  of  matrimony  was  not  confided 
to  the  courts  m  England,  and  from  the  earliest  days  the  colonial  and 
state  legislatures  in  this  country  have  assumed  to  possess  the  same 
power  over  the  subject  which  was  possessed  by  the  Parliament,  and 


3o8  DIVORCE   AND    SKl'ARA  TIUN. 

from  time  to  time  tliey  have  passed  special  laws  declaring  a  dissolu- 
tion of  the  bonds  of  matrimony  in  special  cases."  P.  no.  Says 
Kent,  in  his  Commentaries:  "  During  the  period  of  our  colonial 
government,  for  more  than  one  hundred  years  preceding  the  revolu- 
tion, no  divorce  took  place  in  the  colony  of  New  York,  and  for  many 
years  after  New  York  became  an  independent  state  there  was  not 
any  lawful  mode  of  dissolving  a  marriage  in  the  lifetime  of  the  par- 
ties but  by  a  special  act  of  the  legislature."  2  Kent's  Com.  97. 
The  same  fact  is  stated  in  numerous  decisions  of  the  highest  courts 
of  the  states.  Thus,  in  Cronise  v.  Cronisc^  54  Pa.  St.  255,  261,  the 
Supreme  Court  of  Pennsylvania  said:  "  Special  divorce  laws  are 
legislative  acts.  This  power  has  been  exercised  from  the  earliest 
period  by  the  legislature  of  the  province,  and  by  that  of  the  state 
under  the  Constitutions  of  1776  and  1790.  *  *  *  '\:\\q  continued 
e.xercise  of  the  power,  after  the  adoption  of  the  Constitution  of  1790, 
cannot  be  accounted  for  except  on  the  ground  that  all  men,  learned 
or  unlearned,  believed  it  to  be  a  legitimate  exercise  of  the  legislative 
power.  This  belief  is  further  strengthened  by  the  fact  that  no  judi- 
cial decision  has  been  made  against  it.  Communis  error  facit  Jus 
would  be  sufficient  to  support  it,  but  it  stands  upon  the  higher  ground 
of  contemporaneous  and  continued  construction  of  the  people  of 
their  own  instrument." 

In  Crane  v.  Meginnis,  i  G.  &  J.  463,  474,  the  Supreme  Court  of 
Maryland  said:  "  Divorces  in  this  state  from  the  earliest  times  have 
emanated  from  the  general  assembly  and  can  now  be  viewed  in  no 
other  light  than  as  regular  exertions  of  the  legislative  power." 

In  Stone  v.  Pease,  8  Conn.  541,  decided  in  1831,  the  question  arose 
before  the  Supreme  Court  of  Connecticut  as  to  the  validity  of  a  leg- 
islative divorce  under  the  Constitution  of  181 8,  which  provided  for 
an  entire  separation  of  the  legislative  and  judicial  departments.  The 
court,  after  stating  that  there  had  been  a  law  in  force  in  that  state 
on  the  subject  of  divorces,  passed  one  hundred  and  thirty  years 
before,  which  provided  for  divorces  on  four  grounds,  said,  speaking 
by  Mr.  Justice  Daggett:  "  The  law  has  remained  in  substance  the 
same  as  it  was  when  enacted  in  1667.  During  all  this  period  the 
legislature  has  interfered  like  the  Parliament  of  Great  Britain,  and 
passed  special  acts  of  divorce  avinculo  fnatrimonii;  and  at  almost  every 
session  since  the  Constitution  of  the  United  States  went  into  opera- 
tion, now  forty-two  years,' and  for  thirteen  years  of  the  existence  of 
the  Constitution  of  Connecticut,  such  acts  have  been,  in  multiplied 
cases,  passed  and  sanctioned  by  the  constituted  authorities  of  our 
state.  We  are  not  at  liberty  to  inquire  into  the  wisdom  of  our  exist- 
ing law  on  this  subject;  nor  into  the  expediency  of  such  frequent 


LEGISLATIVE    DIVORCE.  309 

interference  by  the  legislature.  We  can  only  inquire  into  the  con- 
stitutionality of  the  act  under  consideration.  The  power  is  not  pro- 
hibited either  by  the  Constitution  of  the  United  States  or  by  that 
of  the  state.  In  view  of  the  appalling  consequences  of  declaring 
the  general  law  of  the  state  or  the  repeated  acts  of  our  legislature 
unconstitutional  and  void  —  consequences  easily  conceived  but  not 
easily  expressed,  such  as  bastardizing  the  issue  and  subjecting  the 
parties  to  punishment  for  adultery,  —  the  court  should  come  to 
the  result  only  on  a  solemn  conviction  that  their  oaths  of  office 
and  these  constitutions  imperiously  demand  it.  Feeling  myself 
no  such  conviction,  I  cannot  pronounce  the  act  void."  It  is  to 
be  observed  that  the  divorce  in  this  case  was  granted  on  the  petition 
of  the  wife,  who  alleged  certain  criminal  intimacies  of  the  husband 
with  others,  and  the  act  of  the  legislature  recited  that  her  allega- 
tion, after  hearing  her  and  her  husband,  with  their  witnesses  and 
counsel,  was  found  to  be  true.  The  inquiry  appears  to  have  been 
conducted  with  the  formality  of  a  judicial  proceeding,  and  might 
undoubtedly  have  been  properly  referred  to  the  judicial  tribunals; 
yet  the  Supreme  Court  of  the  state  did  not  regard  the  divorce  as 
beyond  the  competency  of  the  legislature. 

The  same  doctrine  is  declared  in  numerous  other  cases,  and 
positions  similar  to  those  taken  against  the  validity  of  the  act  of  the 
legislative  assembly  of  the  territory,  that  it  was  beyond  the  com- 
petency of  a  legislature  to  dissolve  the  bonds  of  matrimony,  have 
been  held  untenable.  These  decisions  justify  the  conclusion  that 
the  division  of  government  into  three  departments,  and  the  implied 
inhibition  through  that  cause  upon  the  legislative  department  to 
exercise  judicial  functions  was  neither  intended  nor  understood  to 
exclude  legislative  control  over  the  marriage  relation.  In  most  of 
the  states  the  same  legislative  practice  on  the  subject  has  prevailed 
since  the  adoption  of  their  constitutions  as  before,  which,  as  Mr. 
Bishop  observes,  may  be  regarded  as  a  contemporaneous  construc- 
tion that  the  power  thus  exercised  for  many  years  was  rightly  exer- 
cised. The  adoption  of  late  years  in  many  constitutions  of  provisions 
prohibiting  legislative  divorces  would  also  indicate  a  general  con- 
viction that  without  this  prohibition  such  divorces  might  be  granted, 
notwithstanding  the  separation  of  the  powers  of  government  into 
departments  by  which  judicial  functions  are  excluded  from  the  leg- 
islative department.  There  are,  it  is  true,  decisions  of  state  courts 
of  high  character,  like  the  Supreme  Court  of  Massachusetts  and  of 
Missouri,  holding  differently;  some  of  which  were  controlled  by  the 
peculiar  language  of  their  state  constitutions.  Sparhmvk  v.  Spar- 
hawk,  116  Mass.  315;  State  v.  Fry,  4  Mo.  120,  138.     The  weight  of 


310  DIVC^RCE    AND    SKPAKATION. 

authority,  however,  is  decidedly  in  favor  of  the  position  that,  in  the 
absence  of  direct  prohibition,  the  power  over  divorces  remains  with 
the  legislature.  We  are,  therefore,  justified  in  holding — more, 
we  are  compelled  to  hold,  that  the  granting  of  divorces  was  a  right- 
ful subject  of  legislation  according  t(j  the  prevailing  judicial  opini(jn 
t)f  the  country,  and  the  understanding  of  the  profession  at  the  time 
the  organic  act  of  Oregon  was  passed  by  Congress,  when  either  of 
the  parties  divorced  was  at  the  time  a  resident  within  the  territorial 
jurisdiction  of  the  legislature.  If  within  the  competency  of  the 
legislative  assembly  of  the  territory,  we  cannot  inquire  into  its 
motives  in  passing  the  act  granting  the  divorce;  its  will  was  a  suffi- 
cient reason  for  its  action.  One  of  the  parties,  the  husband,  was  a 
resident  within  the  territory,  and  as  he  acted  soon  afterwards  upon 
the  dissolution  and  married  again  we  may  conclude  that  the  act  was 
passed  upon  his  petition.  If  the  assembly  possessed  the  power  to 
grant  a  divorce  in  any  case,  its  jurisdiction  to  legislate  upon  his 
status,  he  being  a  resident  of  the  territory,  is  undoubted,  unless  the 
marriage  was  a  contract  within  the  prohibition  of  the  Federal  Consti- 
tution against  its  impairment  by  legislation,  or  within  the  terms  of 
the  ordinance  of  1787,  the  privileges  of  which  were  secured  to  the 
inhabitants  of  Oregon  by  their  organic  act,  questions  which  we  will 
presently  consider. 

The  facts  alleged  in  the  bill  of  complaint,  that  no  cause  existed 
for  the  divorce,  and  that  it  was  obtained  without  the  knowledge  of 
the  wife,  cannot  affect  the  validity  of  the  act.  Knowledge  or  ignor- 
ance of  parties  of  intended  legislation  does  not  affect  its  validity,  if 
within  the  competency  of  the  legislature.  The  facts  mentioned  as  to 
the  neglect  of  the  husband  to  send  to  his  wife,  whom  he  left  in 
Ohio,  any  means  for  her  support,  or  that  of  her  children,  in  disre- 
gard of  his  promise,  shows  conduct  meriting  the  strongest  reproba- 
tion, and  if  the  facts  stated  had  been  brought  to  the  attention  of 
Congress,  that  body  might,  and  probably  would,  have  annulled  the 
act.  Be  that  as  it  may,  the  loose  morals  and  shameless  conduct  of 
the  husband  can  have  no  bearing  upon  the  question  of  the  existence 
or  absence  of  power  in  the  assembly  to  pass  the  act. 

The  organic  act  extends  the  legislative  power  of  the  territory  to 
all  rightful  subjects  of  legislation  "  not  inconsistent  with  the  Consti- 
tution and  laws  of  the  United  States."  The  only  inconsistency 
suggested  is,  that  it  impairs  the  obligation  of  the  contract  of  mar- 
riage. Assuming  that  the  prohibition  of  the  Federal  Constitution 
against  the  impairment  of  contracts  by  state  legislation  applies 
equally,  as  would  seem  to  be  the  opinion  of  the  Supreme  Court  of 
the  territory,  to  legislation  by  territorial  legislatures,  we  are  clear 


LEGISLATIVE    DIVORCE.  3  II 

that  marriage  is  not  a  contract  within  the  meaning  of  the  prohibition. 
As  was  said  by  Chief  Justice  Marshall  in  the  Dartmouth  College 
Case,  not  by  way  of  judgment,  but  in  answer  to  objections  urged  to 
positions  taken:  "  The  provision  of  the  Constitution  never  had  been 
understood  to  embrace  other  contracts  than  those  which  respect 
property  or  some  object  of  value,  and  confer  rights  which  may  be 
asserted  in  a  court  of  justice.  It  never  has  been  understood  to  re- 
strict the  general  right  of  the  legislature  to  legislate  on  the  subject 
of  divorces."  4  Wheat.  629.  And  in  Butler  v.  Pennsylvania,  10  How. 
402,  where  the  question  arose  whether  a  reduction  of  tht per  diem 
compensation  to  certain  canal  commissioners  below  that  originally 
provided  when  they  took  office,  was  an  impairment  of  the  contract 
with  them  within  the  constitutional  prohibition,  the  court,  holding 
that  it  was  not  such  an  impairment,  said:  "  The  contracts  designed 
to  be  protected  by  the  tenth  section  of  the  first  article  of  that  instru- 
ment are  contracts  by  which  perfect  rights,  certain,  definite,  fixed 
private  rights  of  property  are  vested."     p.  416. 

It  is  also  to  be  observed  that,  whilst  marriage  is  often  termed  by 
text  writers  and  in  decisions  of  courts  as  a  civil  contract  —  gener- 
ally to  indicate  that  it  must  be  founded  upon  the  agreement  of  the 
parties,  and  does  not  require  any  religious  ceremony  for  its  solemni- 
zation —  it  is  something  more  than  a  mere  contract.  The  consent 
of  the  parties  is,  of  course,  essential  to  its  existence,  but  when  the 
contract  to  marry  is  executed  by  the  marriage,  a  relation  between 
the  parties  is  created  which  they  cannot  change.  Other  contracts 
may  be  modified,  restricted  or  enlarged,  or  entirely  released  upon 
the  consent  of  the  parties.  Not  so  with  marriage.  The  relation 
once  formed,  the  law  steps  in  and  holds  the  parties  to  various  obliga- 
tions and  liabilities.  It  is  an  institution,  in  the  maintenance  of 
which  in  its  purity  the  public  is  deeply  interested,  for  it  is  the  founda- 
tion of  the  family  and  of  society,  without  which  there  would  be 
neither  civilization  nor  progress.  This  view  is  well  expressed  by 
the  Supreme  Court  of  Maine  in  Adams  v.  Palmer,  51  Me.  481,  483. 
Said  that  court  speaking  by  Chief  Justice  Appleton:  "  When  the  con- 
tracting parties  have  entered  into  the  marriage  state,  they  have  not  so 
much  entered  into  a  contract  as  into  a  new  relation,  the  rights,  duties, 
and  obligations  of  which  rest  not  upon  their  agreement,  but  upon  the 
general  law  of  the  state,  statutory  or  common,  which  defines  and 
prescribes  those  rights,  duties,  and  obligations.  They  are  of  law, 
not  of  contract.  It  was  of  contract  that  the  relation  should  be  es- 
tablished, but,  being  established,  the  power  of  the  parties  as  to  its 
extent  or  duration  is  at  an  end.  Their  rights  under  it  are  deter- 
mined by  the  will  of  the  sovereign,  as  evidenced  by  law.     They  can 


312  DIVORCE   AND    SEPARATION. 

neither  be  modified  nor  changed  by  any  agreement  of  parties.     It 
is  a  relation   for  life   and   the   parties   cannot   terminate   it   at   any 
shorter  period  by  virtue  of  any  contract  they  may  make.     The  recip- 
rocal rights  arising  from  this  relation,  %o  long  as  it  continues,  are 
such  as   the  law   determines   from   time  to  time,  and    none  other." 
And  again:   "  It  is  not,  then,  a  contract  within  the  meaning  of  the 
clause  of  the  Constitution  which  prohibits  the  impairing  the  obliga- 
tion of  contracts.      It  is,  rather,  a  social  relation,  like  that  of  parent 
and  child,  the  obligations   of   which   arise   not   from   the  consent  of 
concurring  minds,  but  are  the  creation  of  the  law  itself;  a  relation 
the  most  important,  as  affecting  the  happiness  of  individuals,  the 
first  step  from  barbarism  to  incipient  civilization,  the  purest  tie  of 
social   life   and   the   true  basis   of   human    progress."     pp.  484,  485 
And   the   Chief   Justice   cites   in   support   of   this   view   the  case  of 
Maguire  v.  Magiiire,  7   Dana,  181,    183,  and  Ditson  v.  Ditson,  4  R.  I. 
87,  loi.     In  the  first  of  these  the  Supreme  Court  of  Kentucky  said 
that  marriage  was  more  than  a  contract;  that  it  was  the  most  ele- 
mentary  and   useful   of   all   the  social  relations,   was  regulated  and 
controlled  by  the  sovereign  power  of  the  state,  and  could  not,  like 
mere  contracts,  be  dissolved  by  the  mutual  consent  of  the  contract- 
ing parties,  but  might  be  abrogated  by  the  sovereign  will  whenever 
the  public  good,  or  justice  to  both  parties,  or  either  of  the  parties, 
would  thereby  be  subserved;  that  being  more  than  a  contract,  and 
depending  especially  upon  the  sovereign  will,  it  was  not  embraced 
by  the  constitutional    inhibition   of    legislative   acts   impairing  the 
obligations  of  contracts.     In  the  second  case,  the  Supreme  Court  of 
Rhode  Island  said  that  "  marriage,  in  the  sense  in  which  it  is  dealt 
with  by  a  decree  of  divorce,  is  not  a  contract,  but  one  of  the  domes- 
tic relations.     In  strictness,  though  formed  by  contract,  it  signifies 
the  relation  of  husband  and  wife,  deriving  both  its  rights  and  duties 
from  a  source  higher  than   any   contract   of   which   the   parties  are 
capable,  and  as  to  these  uncontrollable  by  any  contract  which  they 
can  make.     When  formed,  this  relation  is  no  more  a  contract  than 
'  fatherhood  '  or  '  sonship.'  is  a  contract." 

In  Wadex.  Kalbfleisch,  58  N.  Y.  282,  284,  the  question  came  before 
the  Court  of  Appeals  of  New  York  whether  an  action  for  breach  of 
promise  of  marriage  was  an  action  upon  a  contract  within  the  mean- 
ing of  certain  provisions  of  the  Revised  Statutes  of  that  state,  and  in 
disposing  of  the  question  the  court  said:  "The  general  statute, 
'that  marriage,  so  far  as  its  validity  in  law  is  concerned,  shall  continue 
in  this  state  a  civil  contract,  to  which  the  consent  of  parties,  capable 
in  law  of  contracting,  shall  be  essential,'  is  not  decisive  of  the  ques- 
tion.    2  R.  S.  138.     This  statute  declares  it  a  civil  contract,  as  dis- 


LEGISLATIVE   DIVORCE. 


SI3 


tinguished  from  a  religious  sacrament,  and  makes  the  element  of 
consent  necessary  to  its  legal  validity,  but  its  nature,  attributes,  and 
distinguishing  features  it  does  not  interfere  with  or  attempt  to 
define.  It  is  declared  a  civil  contract  for  certain  purposes,  but  it  is 
not  thereby  made  synonymous  with  the  word  contract  employed  in 
the  common  law  or  statutes.  In  this  state,  and  at  common  law,  it 
may  be  entered  into  by  persons,  respectively,  of  fourteen  and  twelve. 
It  cannot  be  dissolved  by  the  parties  when  consummated,  nor 
released  with  or  without  consideration.  The  relation  is  always 
regulated  by  government.  It  is  more  than  a  contract.  It  requires 
certain  acts  of  the  parties  to  constitute  marriage,  independent  of 
and  beyond  the  contract.  It  partakes  more  of  the  character  of  an 
institution  regulated  and  controlled  by  public  authority,  upon  prin- 
ciples of  public  policy,  for  the  benefit  of  the  community." 

In  JVoe/  v.  Ewing,  9  Indiana,  37,  the  question  was  before  the 
Supreme  Court  of  Indiana  as  to  the  competency  of  the  legislature  of 
the  state  to  change  the  relative  rights  of  husband  and  wife  after  mar- 
riage, which  led  to  a  consideration  of  the  nature  of  marriage;  and 
the  court  said:  "  Some  confusion  has  arisen  from  confounding  the 
contract  to  marry  with  the  marriage  relation  itself.  And  still  more 
is  engendered  by  regarding  husband  and  wife  as  strictly  parties  to  a 
subsisting  contract.  At  common  law,  marriage  as  a  status  had  few 
elements  of  contract  about  it.  For  instance,  no  other  contract 
merged  the  legal  existence  of  the  parties  into  one.  Other  distinc- 
tive elements  will  readily  suggest  themselves,  which  rob  it  of  most 
of  its  characteristics  as  a  contract,  and  leave  it  simply  as  a  status  or 
institution.  As  such,  it  is  not  so  much  the  result  of  private  agree- 
ment as  of  public  ordination.  In  every  enlightened  government,  it 
is  preeminently  the  basis  of  civil  institutions,  and  thus  an  object  of 
the  deepest  public  concern.  In  this  light,  marriage  is  more  than  a 
contract.  It  is  not  a  mere  matter  of  pecuniary  consideration.  It  is 
a  great  public  institution,  giving  character  to  our  whole  civil  polity. ' ' 
pp.  49  50.  In  accordance  with  these  views  was  the  judgment  of  Mr. 
Justice  Story.  In  a  note  to  the  chapter  on  marriage,  in  his  work  on 
the  Conflict  of  Laws,  after  stating  that  he  had  treated  marriage  as 
a  contract  in  the  common  sense  of  the  word,  because  this  was  the 
light  in  which  it  was  ordinarily  viewed  by  jurists,  domestic  as  well 
as  foreign,  he  adds:  "  But  it  appears  to  me  to  be  something  more 
than  a  mere  contract.  It  is  rather  to  be  deemed  an  institution  of 
society,  founded  upon  consent  and  contract  of  the  parties,  and  in 
this  view  it  has  some  peculiarities  in  its  nature,  character,  operation 
and  extent  of  obligation,  different  from  what  belongs  to  ordinary 
contracts."     Sec.    108  n. 


3'4 


DIVORCE    AND    SKI'ARATION. 


The  14th  section  of  the  organic  act  of  Oregon  provides  that  the 
inhabitants  of  the  territory  shall  be  entitled  to  all  the  rights,  privi- 
leges and  advantages  granted  and  secured  to  the  people  of  the  terri- 
tory of  the  United  States,  northwest  of  the  river  Ohio,  by  the  articles 
of  compact  contained  in  the  ordinance  of  July  13,  1787,  for  the  gov- 
ernment of  the  territory.  The  last  clause  of  article  two  of  that  ordi- 
nance declares  "that  no  law  ought  ever  to  be  made  or  have  force 
in  said  territory  that  shall  in  any  manner  whatever  interfere  with 
or  affect  private  contracts  or  engagements  bona  fide  and  without 
fraud,  previously  formed."  This  clause,  though  thus  enacted  and 
made  applicable  to  the  inhabitants  of  Oregon,  cannot  be  construed  to 
operate  as  any  greater  restraint  upon  legislative  interference  with 
contracts  than  the  provision  of  the  Federal  Constitution.  It  was  in- 
tended, like  that  provision,  to  forbid  the  passage  of  laws  which  would 
impair  rights  of  property  vested  under  private  contracts  or  engage- 
ments, and  can  have  no  application  to  the  marriage  relation. 

But  it  is  contended  that  Lydia  A.  Maynard,  the  first  wife  of  David 
A.  Maynard,  was  entitled,  notwithstanding  the  divorce,  to  the  east 
half  of  the  donation  claim.  The  settlement,  it  is  true,  was  made  by 
her  husband  as  a  married  man  in  order  to  secure  the  640  acres  in 
such  case  granted  under  the  donation  act.  9  Stat.  496,  c.  76.  But 
that  act  conferred  the  title  of  the  land  only  upon  the  settler  who  at 
the  time  was  a  resident  of  the  territory,  or  should  be  a  resident  of 
the  territory  before  December  i,  1850,  and  who  should  reside  upon 
and  cultivate  the  land 'for  four  consecutive  years.  The  words  of  the 
act,  that  "  there  shall  be,  and  hereby  is,  granted  to  every  white  set- 
tler or  occupant,"  is  qualified  by  the  condition  of  four  years'  resi- 
dence on  the  land  and  its  cultivation  by  him.  The  settler  does  not 
become  a  grantee  until  such  residence  and  cultivation  have  been 
had,  by  the  very  terms  of  the  act.  Until  then  he  has  only  a  promise 
of  a  title,  what  is  sometimes  vaguely  called  an  inchoate  interest.  In 
some  of  the  cases  decided  at  the  circuit,  the  fourth  section  of  the 
act  was  treated  as  constituting  a  grant  in  prcesenti,  subject  to  the 
conditions  of  continued  residence  and  cultivation,  that  is,  a  grant 
of  a  defeasible  estate.  Adams  v.  Burke,  3  Sawyer,  415,  418.  But  this 
view  was  not  accepted  by  this  court.  In  Hall  v.  Russell,  loi  U.  S. 
503,  the  nature  of  the  grant  was  elaborately  considered,  and  it  was 
held  that  the  title  did  not  vest  in  the  settler  until  the  conditions 
were  fully  performed.  After  citing  the  language  of  a  previous  de- 
cision, that  "  it  is  always  to  be  borne  in  mind,  in  construing  a  con- 
gressional grant,  that  the  act  by  which  it  is  made  is  a  law  as  well  as 
a  conveyance,  and  that  such  effect  must  be  given  to  it  as  will  carry 
out  the  intent  of  congress,"  the  court  said:     "There  cannot  be  a 


LEGISLATIVE    DIVORCE.  315 

grant  unless  there  is  a  grantee,  and  consequently  there  cannot  be  a 
present  grant  unless  there  is  a  present  grantee.  If,  then,  the  law 
making  the  grant  indicates  a  future  grantee  and  not  a  present  one, 
the  grant  will  take  effect  in  the  future,  and  not  presently.  In  all  the 
cases  in  which  we  have  given  these  words  the  effect  of  an  immediate 
and  present  transfer  it  will  be  found  that  the  law  has  designated  a 
grantee  qualified  to  take  according  to  the  terms  of  the  law,  and  actu- 
ally in  existence  at  the  time  *  *  *  Coming  then  to  the  present 
case,  we  find  that  the  grantee  designated  was  any  qualified  'settler 
or  occupant  of  the  public  lands  *  *  *  who  shall  have  resided 
upon  and  cultivated  the  same  for  four  consecutive  years,  and  shall 
otherwise  conform  to  the  provisions  of  the  act.'  The  grant  was  not 
to  a  settler  only,  but  to  a  settler  who  had  completed  the  four  years 
of  residence,  etc.,  and  had  otherwise  conformed  to  the  act.  When- 
ever a  settler  qualified  himself  to  become  a  grantee  he  took  the  grant, 
and  his  right  to  a  transfer  of  the  legal  title  from  the  United  States 
became  vested.  But  until  he  was  qualified  to  take,  there  was  no 
actual  grant  of  the  soil.  The  act  of  congress  made  the  transfer  only 
when  the  settler  brought  himself  within  the  description  of  those 
designated  as  grantees.  A  present  right  to  occupy  and  maintain 
possession,  so  as  to  acquire  a  complete  title  to  the  soil,  was  granted 
to  every  white  person  in  the  territory,  having  the  other  requisite 
qualifications,  but  beyond  this  nothing  passed  until  all  was  done  that 
was  necessary  to  entitle  the  occupant  to  a  grant  of  the  land."  In 
Vance  v.  Burbank,  loi  U.  S.  514,  521,  the  doctrine  of  the  previous 
case  was  reaffirmed  and  the  court  added:  "  The  statutory  grant  was 
to  the  settler,  but  if  he  was  married,  the  donation,  when  perfected, 
inured  to  the  benefit  of  himself  and  his  wife  in  equal  parts.  The 
wife  could  not  be  a  settler.  She  got  nothing  except  through  her 
husband." 

When,  therefore,  the  act  was  passed  divorcing  the  husband  and 
wife,  he  had  no  vested  interest  in  the  land,  and  she  could  have  no  inter- 
est greater  than  his.  Nothing  had  then  been  acquired  by  his  resi- 
dence and  cultivation  which  gave  him  anything  more  than  a  mere 
possessory  right;  a  right  to  remain  on  the  land  so  as  to  enable  him 
to  comply  with  the  conditions  upon  which  the  title  was  to  pass  to 
him.  After  the  divorce  she  had  no  such  relation  to  him  as  to  confer 
upon  her  any  interest  in  the  title  subsequently  acquired  by  him. 
A  divorce  ends  all  rights  not  previously  vested.  Interests  which 
might  vest  in  time,  upon  a  continuance  of  the  marriage  relation, 
were  gone.  A  wife  divorced  has  no  right  of  dower  in  his  property; 
a  husband  divorced,  has  no  right  by  the  curtesy  in  her  lands,  unless 
the  statute  authorizing  the  divorce  specially  confers  such  right. 


3l6  DIVORCE    AND    SErAKATION. 

It  follows  that  the  wife  wah  noL  entitled  to  tlic  cast  half  of  ihe 
donation  claimed.  To  entitle  her  to  tnat  half,  she  must  have  con- 
tinued his  wife  during  his  resitlence  and  cultivation  of  the  land. 
The  judgment  of  the  Supreme  Court  of  the  territory  must  therefore 
be  affirmed;  and  it  is  so  ordered. 


Effect  of  Divorce. 

In  the  Matter  of  the   Estate  of  ENSIGN,  Deceased. 

103  N.  Y.   284.  —  1886. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court, 
in  the  fifth  judicial  department,  entered  upon  an  order  made  the  first 
Tuesday  of  June,  1886,  which  affirmed  a  decree  of  the  surrogate  of 
the  county  of  Erie,  dismissing  the  petition  of  Jennie  Ensign  Martin, 
which  asked  to  have  set  aside  the  probate  of  the  will  of  Elisha  W. 
Ensign,  deceased,  and  ratifying  and  confirming  the  decree  admitting 
the  will  to  probate. 

It  appeared  that  the  deceased  and  the  petitioner  were  married  in 
1867,  and  lived  together  as  man  and  wife  until  1875;  that  a  child  was 
born  of  said  marriage  in  1869,  which  died  soon  after;  that  in  Decem- 
ber, 1875,  a  decree  of  divorce  was  granted,  in  an  action  brought  by 
her  against  her  husband,  because  of  adultery,  on  his  part,  and  in  1877 
she  married  again.  The  will,  which  was  admitted  to  probate,  was 
executed  before  their  marriage.  No  citation  or  notice  of  the  probate 
proceedings  was  served  upon  or  given  to  the  petitioner.  •  The 
petitioner  claimed  that  the  will  was  void  because  of  the  subsequent 
marriage  and  birth  of  issue,  and  that  she  as  "widow"  was  entitled 
to  a  distributive  share  in  his  personal  estate,  and  to  notice  of  the 
proceedings  for  the  probate  of  the  will. 

Finch,  J.  A  statutory  construction,  unchallenged  for  more  than 
half  a  century,  is  assailed  on  this  appeal. 

That  a  divorced  wife,  however  innocent,  has  no  right  to  a  distribu- 
tive share  in  the  personal  estate  of  her  divorced  husband,  upon  his 
death  intestate,  has  been  conceded  until  a  very  recent  period,  but  is 
now  asserted  to  have  been  all  the  time  a  mistake,  which  should  be 
at  last  corrected. 

A  single  provision  of  the  statute  relating  to  divorce  gives  color  to 
the  construction  sought.  Where  the  decree  is  founded  upon  the  mis- 
conduct of  the  wife,  it  is  e.vpressly  provided  that  "  she  shall  not  be 
entitled   to  dower  in  her  husband's  real   estate  or  any  part   thereof, 


EFFECT   OF   DIVORCE.  317 

nor  to  any  distributive  share  in  his  personal  estate."  (2  R.  S.  146. 
§  48.)  On  the  theory  that  this  was  a  needed  provision  to  bar  the 
guilty  wife  of  dower,  it  is  argued  that  it  was  thought  also  a  needed 
provision  to  bar  distribution,  and  the  inference  is  drawn  that  without 
such  prohibition,  or  where  by  reason  of  the  divorced  wife's  innocence 
it  could  not  apply,  the  legislature  supposed  she  would  be  so  entitled, 
and  intended  to  leave  her,  when  free  from  fault,  in  the  possession  of 
both  rights  to  their  full  extent.  But  it  is  quite  evident  that  we  have 
here  an  unnecessary  and  superfluous  provision  as  it  respects  dower. 
In  a  previous  part  of  the  Revised  Statutes  (i  R.  S.  740,  §  8),  under 
the  title  relating  to  estates  in  dower,  it  had  already  been  declared 
that  in  case  of  a  divorce  dissolving  the  marriage  contract  for  the 
misconduct  of  the  wife  she  shall  not  be  endowed.  This  provision 
was  needed  to  cut  off  the  inchoate  dower  of  the  wife  in  property  of 
the  husband  acquired  prior  to  the  decree,  and  was  useless  beyond 
that,  and  so  operative  for  that  purpose  only.  The  added  provision 
of  section  48  was,  therefore,  needless.  It  is  conceded  to  have  been 
a  mere  "repetition,"  having  no  excuse  except  that  over-caution 
which  is  sometimes  as  'dangerous  as  neglect.  In  the  same  statute 
there  is  a  second  instance  of  like  superfluous  legislation.  It  is  pro- 
vided that  the  dissolution  of  the  marriage  contract  shall  not  affect 
the  legitimacy  of  the  children.  (2  R.  S.  145,  §  43.)  In  IVaii  v. 
JVat^,  4  Comst.  95,  it  was  said  of  this  provision,  "No  one,  however, 
will  pretend  that  such  a  provision,  though  for  greater  caution  it  may 
have  been  wise  to  adopt  it,  was  in  fact  necessary."  And  the  court 
admitted  that  this  needless  care  bore  "to  some  extent "  upon  the 
prohibition  of  dower  in  section  48.  There  were  thus,  concededly, 
two  instances  of  needless  caution  in  the  statutes  under  consideration, 
and  others  ought  not  to  surprise  us.  Ascertaining  that  the  clause 
relating  to  dower  was  useless,  we  may  expect  to  find  that  equally 
true  of  the  following  one  relating  to  distribution.  The  revisers 
omitted  it  in  their  draft,  but  the  legislature  added  ii.  At  that  time 
no  right  to  distribution  had  ever  been  conceded  to  the  divorced 
wife,  but  the  law  had  been  administered  to  the  contrary,  and  with 
the  full  knowledge  of  that  fact  in  the  mind  of  the  legislature,  it  is 
difficult  to  conceive  an  intent  to  change  the  rule  in  so  important  a 
matter  left  to  be  evidenced  merely  by  an  indirect  inference,  and  not 
affirmatively  and  expressly  declared. 

The  rule  as  it  then  stood  rested  upon  very  clear  and  definite 
grounds.  The  statute  of  divorce  began  with  a  provision  permitting 
a  marriage  to  be  annulled  for  specific  reasons.  In  such  case  no 
marital  rights  could  exist  on  either  side,  since  the  decree  adjudged 
that  a  lawful    marriage    had    never   existed.     But   then   came    pro- 


3l8  DIVORCE   AND    SEPARATION. 

visions  for  a  dissolution  of  the  marriage  contract  In  such  case 
the  contract  is  ended  and  terminated  by  the  decree  of  the  court. 
The  relation  of  husband  and  wife,  both  actual  and  legal,  is  utterly 
destroyed,  and  no  future  rights  can  thereafter  spring  out  of  or 
arise  from  it.  Existing  rights  already  vested  are  not  thereby 
forfeited,  and  are  taken  away  only  by  special  enactment  as  a  pun- 
ishment for  wrong.  But  future  rights  dependent  upon  the  marital 
relation  and  born  of  it  there  can  be  none.  Thus,  the  wife's  dower  at 
the  date  of  the  decree  is  vested  as  an  inchoate  right,  at  least  as 
against  the  husband,  whether  she  be  innocent  or  guilty,  by  the  con- 
currence of  marriage  and  seizin.  It  has  fastened  upon  the  land  and 
follows  it  as  an  incumbrance  and  would  become  consummate  upon 
the  death  of  the  husband  in  either  event,  but  for  the  express  man- 
date of  the  statute  which  forfeits  it  where  the  wife  is  the  guilty  party. 
But  the  wife,  although  blameless,  acquires  no  dower  right  in  lands 
conveyed  to  the  husband  after  the  divorce  because  he  was  not  seized 
during  the  coverture.  Kade  v.  Laiiber,  i6  Abb.  Pr.  [N  S.  ]  288. 
The  coverture  is  ended  and  cannot  serve  to  found  a  new  right  after 
its  destruction.  The  existing  inchoate  right  remains,  because  it  has 
already  accrued,  has  not  been  forfeited  by  guilt,  and  does  not  depend 
upon  the  continuance  of  the  marriage  relation,  but  independent  of 
that  continuance  becomes  consummate  by  the  death  of  him  who  was 
the  husband  when  it  sprang  into  being.  For  the  same  reason  that 
future  rights,  dependent  for  their  origin  upon  the  marriage  relation, 
cannot  arise  after  its  dissolution,  and  which  prevents  the  innocent 
wife  from  having  dower  in  her  husband's  after-acquired  lands,  it  fol- 
lows that  she  can  have  no  distributive  share  in  his  personalty.  At 
the  date  of  the  decree  she  has  no  existing  right  in  his  personal  estate. 
That  is  his.  No  fraction  of  it  and  no  lien  upon  it  are  hers.  He  may 
sell  it  without  her  consent,  give  it  away  if  he  pleases,  and  bequeath 
it  at  his  own  free  choice.  If  it  remains  his  at  his  death  then  the  wife, 
if  the  marriage  relation  exists,  and  has  not  been  sundered,  becomes 
"  the  widow  "  named  in  the  statute  of  distribution,  and  at  that  moment, 
for  the  first  time,  arises  her  right  in  the  personal  estate  dependent 
upon  the  existence  of  the  marriage  at  the  husband's  death.  Admin- 
istration is  given,  first,  "  to  the  widow."  The  law  contemplates  the 
possible  existence  of  but  one,  and  makes  no  provision  for  a  struggle 
of  priority  between  two  or  more.  To  "the  widow"  is  given  one- 
third  of  the  personal  estate  and  all  the  other  provisions  allowing 
her  occupation  of  her  husband's  house,  and  setting  apart  for  her 
specific  articles  of  household  use,  indicate  the  understanding  of  the 
legislature  that  she  only  was  "  the  widow  "  who  held  to  the  deceased, 
at  the  date  of  his  decease,  the  relation  of  a  wife.     Otherwise  the  stat- 


^  EFFECT   OF   DIVORCE.  319 

utes,  meant  to  be  both  just  and  generous,  become  fomentors  of 
discord,  and  plan  for  bitterness  and  war.  The  divorced  wife  is 
not  "the  widow."  She  may  be  the  lawful  wife  of  another  man, 
and  the  deceased  may  have  lawfully  remarried  in  another  state,  or  by 
permission  of  the  court  in  this,  and  it  would  follow,  if  the  appellant 
is  right,  that  a  woman  may  be  a  widow  although  her  lawful  husband  is 
living,  and  that  an  intestate  may  leave  two  widows  with  equal  rights 
to  administration  and  distribution.  Suppose  that,  with  unusual 
activity,  he  should  leave  four.  How  would  each  get  one-third  of  the 
personalty  ?  And  were  the  children  of  any  account  in  the  scheme 
of  distribution?  In  one  event  "the  widow"  is  entitled  to  the  whole 
surplus.  The  appellant's  counsel  solves  the  struggle  for  priority  by 
applying  to  the  later  wives,  with  a  sort  of  grim  humor,  the  maxim 
caveat  emptor^  but  the  suggestion  is  not  quite  adequate  to  unsettle 
the  law  and  unite  at  desired  points  a  severed  bond.  When  the  court 
dissolves  the  marriage  contract  at  the  suit  of  the  innocent  wife,  it  is 
authorized  to  decree  the  payment  to  her  of  a  suitable  allowance. 
And  why  is  that  ?  If  any  marital  right  continues  after  the  divorce, 
the  wife  remains  entitled  to  her  support  and  may  enforce  it  in  the 
ordinary  way.  On  the  contrary  the  statute  recognizes  that  when 
the  marriage  tie  is  broken,  and  the  relation  ended,  no  future  rights 
will  remain  to  the  wife,  and  no  future  obligations  bind  the  husband 
which  have  their  root  in  the  marriage  relation.  The  court  is  author- 
ized to  give  by  its  decree,  in  the  form  of  an  allowance,  a  just  and 
adequate  substitute  for  the  right  of  the  innocent  wife  which  the 
divorce  cuts  off  and  forbids  in  the  future.  The  tribunal  granting 
the  decree  investigates  the  husband's  financial  condition,  takes 
proof  of  the  value  of  his  property,  and  then  makes  a  suitable  allow- 
ance for  her  life,  and  so  puts  the  decree  and  its  power  in  the  place^ 
and  room  of  what  is  lost  in  the  future. 

If  because  the  wife  is  innocent  the  marriage  relation  in  any  degree 
subsists  as  against  the  husband,  we  must  confront  the  anomaly  of  a 
contract  adjudged  to  have  been  dissolved,  and  yet  remaining  not 
dissolved  as  to  one  of  the  parties,  and  read  in  the  decree  that  both 
sides  are  free  from  the  obligations  of  the  marriage  contract,  when 
the  court  pronouncing  it  knows  it  to  be  false,  since  some  obligations 
of  the  husband  will  remain.  The  distinction  drawn  on  behalf  of  the 
appellant  between  rights  and  obligations  does  not  relieve  the  diffi- 
culty, for  it  is  impossible  to  conceive  of  a  right  of  the  wife  wnich 
does  not  impose  upon  the  husband  a  corresponding  obligation.  The 
true  theory  of  the  statute  is,  that  from  the  date  of  the  decree  no 
existing  and  vested  rights  are  forfeited  except  by  the  express  man- 
date of  the  statute,  but  since   the   marriage  contract  ends  and   the 


320  DIVORCE    A\I)    SEPARATION. 

relation  terminates,  no  future  marital  right  or  obligation  can  arise 
for  or  against  either.  In  place  of  them  stands  the  decree  of  the 
court,  looking  beyond  the  bond  it  is  about  to  sever,  recognizing  the 
inevitable  consequences  to  follow  the  uplifted  arm,  and  providing 
for  the  innocent  wife  or  husband  by  its  own  mandate  that  reparation 
which,  after  the  decree,  is  possible  from  no  other  source. 

Nothing  decided  in  IFat^  v.  U'ai/  (si/Jy?a),  upon  which  the  appel- 
lant so  much  relies,  is  at  all  to  the  contrary.  The  question  there 
was  over  the  right  of  the  innocent  wife  to  dower  in  the  lands  of 
which  the  husband  was  seized  before  the  divorce,  and,  therefore, 
during  coverture.  The  argument  against  that  right  assumed  as  not 
open  to  contradiction  that  the  divorce  ended  the  marriage  so  that 
none  of  its  future  rights  or  obligations  could  survive,  and  then  sought 
to  show  that  the  wife's  inchoate  dower  was  a  mere  possibility  or 
expectation,  having  no  tangible  existence  until  in  the  future  follow- 
ing the  decree.  This  court  met  the  argument  exactly  at  that  point 
and  asserted  as  the  sufficient  answer,  what  we  have  already  pointed 
out,  that  the  wife's  dower,  by  the  concurrence  of  marriage  and 
seizin,  attached  to  the  land  as  a  fixed  and  vested  right,  not  to  be 
shaken  off  unless  by  her  consent  or  some  declared  forfeiture  or 
decree  of  the  sovereign  power,  and  then  argued  that  the  dissolution 
of  the  marrige  operated  prospectively  only,  and  so  had  no  retroac- 
tive effect  upon  a  right  already  vested.  Observe  that  the  ground 
taken  was  not  that  the  marriage  relation  in  any  respect  survived  the 
divorce.  If  it  had  been,  the  argument  founded  on  the  character  of 
the  inchoate  dower  as  a  vested  right  would  have  been  pointless  and 
unmeaning.  And  while  there  are  in  the  opinion  expressions  indicat- 
ing a  belief  in  some  sort  of  continuance  of  the  marriage  relation 
after  the  decree,  they  were  unessential  to  the  decision  and  were  not 
the  ground  upon  which  it  stood. 

The  further  argument  of  the  appellant  rests  upon  the  statute 
against  bigamy  and  our  construction  of  it  in  People  v.  Faber,  92  N. 
Y.  146.  The  statute  relating  to  divorce  prohibits  the  guilty 
defendant  from  marrying  again,  and  a  clause  to  that  effect  is  usually 
inserted  in  the  decree.  This  was  needless  and  another  instance  of 
superfluous  care,  if  the  marriage  relation  survived  the  divorce,  as 
against  the  guilty  party,  and  the  express  prohibition  is  here  an 
argument  against  that  theory  of  equal  character  and  force  with  that 
derived  by  the  appellant  from  sec.  48.  But  in  spite  of  the  pro- 
hibition and  because  the  divorced  husband  no  longer  had  a  wife 
living,  it  was  held  in  People  v.  Hovey,  5  Barb.  117,  that  his  after 
marriage,  although  punishable  as  a  contempt,  did  not  constitute  the 
crime  of  bigamy.     We  overruled  that  decision,  but  not  at  all  upon 


EFFECT   OF   DIVORCE.  32 1 

the  ground  that  the  divorced  wife  remained  the  culprit's  wife  in  any 
sense  or  respect,  but  for  the  reason  that  the  statute  by  its  express 
words  disclosed  an  intention  to  make  the  crime  of  bigamy  consist 
not  only  in  marrying  a  second  time  while  the  first  wife  was  living, 
but  in  so  marrying  while  under  the  prohibition  of  the  law,  and 
durmg  the  life  of  the  woman  who  had  been  the  wife  before  the 
decree  of  divorce.  We  construed  these  specific  words  as  intended 
to  force  such  a  case  into  the  meaning  of  the  statute  which  without 
them  would  not  at  all  have  embraced  it,  and  without  them  would 
have  led  us  to  affirm  People  v.  Hovey.  Surely  nothing  was  further 
from  our  thought  and  from  the  careful  reasoning  of  the  opinion  that 
an  idea  that  the  divorced  wife  remained  a  wife  as  to  the  defendant, 
and  that  he  was  a  bigamist  for  that  reason.  We  held  him  to  be 
such  because  the  statute  put  him  "in  the  situation"  of  one  having 
a  wife  living,  "for  the  purpose"  of  enforcing  the  statutory 
provision. 

The  recent  legislation  which  permits  a  divorced  husband,  pro- 
hibited from  re-marrying,  to  do  so  after  five  years  ^nd  with  the 
consent  of  the  court,  and  the  class  of  cases  which  affirm  the  validity 
of  such  second  marriage  in  another  state  over  whose  boundaries  our 
own  prohibition  does  not  extend,  are  alike  inconsistent  with  any 
doctrine  which  makes  the  marriage  relation  as  to  either  of  the 
parties  remain  in  existence  after  the  dissolution  of  the  contract  and 
the  severance  of  the  bond.  With  the  exception  of  a  single  case  in 
the  Supreme  Court,  itself  overruled,  the  statutes  and  decisions  are 
in  entire  harmony  with  the  practice  and  the  rule  which  has  so  long 
prevailed.     We  are  of  opinion  that  it  should  not  be  changed. 

The  judgment  should  be  affirmed  with  costs. 

All  concur. 

Judgment  affirmed.' 

'  Statutory  Prohibition  Against  the  Remarriage  of  the  Guilty  Spouse 
—  Remarriage  Outside  the  State  of  Domicile.  —  "There  is  no  question  as  to  the 
general  rule  that  a  marriage,  which  is  valid  by  the  law  of  the  place  where  it  is 
solemnized,  is  valid  everywhere.  Of  course  even  this  general  rule  has  its 
exceptions  where  the  particular  marriage  is  contrary  to  good  morals  or  public 
policy,  or  to  the  positive  statutes  of  the  country  where  it  is  sought  to  be  enforced. 
But  where  a  man  and  woman,  citizens  of  the  same  state,  and  subject  to  an 
absolute  statutory  prohibition  against  entering  into  a  marriage  contract  which 
is  against  good  morals,  and  contrary  to  public  policy,  leave  their  domicile  and 
enter  another,  for  the  express  purpose  of  violating  the  law  of  their  domicile  in 
this  respect,  the  case  is  highly  exceptional  and  the  great  weight  of  authority  is 
against  the  validity  of  such  a  marriage  in  the  place  of  their  domicile.  There 
have  been  conflicting  decisions  upon  the  question,  but  very  few  of  them  sus- 
tain the  validity  of  the  relation  where  it  has  been  assumed  for  an  intended 
evasion  of  the  law  of  their  domicile  and  is  contrary  to  good  morals.  The  fact 
[Domestic  Relations  —  21.] 


0-- 


DIVORCE   AND    SEPARATION. 


of  such  an  intended  evasion  has  been  repeatedly  recognized  as  the  basis  ot 
invalidity  when  otherwise  validity  would  have  been  declared."  —  Estate  of  StuU, 
1S3  Pa.  625. 

Contra,  "  It  is  a  general  rule  of  law  that  a  contract  entered  into  in  another 
Slate  or  country,  if  valid  according  to  the  law  of  that  place,  is  valid  everywhere. 
*  *  *  And  coming  to  the  case  in  hand  the  rule  recognizes  as  valid  a  marriage 
considered  valid  in  the  place  where  celebrated.  *  *  *  The  real  question  is 
whether  such  a  statute  furnishes  an  exception  to  the  maxim,  /e^es  extra 
tfrritorium  non  obligant.  *  *  *  The  statute  does  not  in  terms  prohibit  a 
second  marriage  in  another  state,  and  it  should  not  be  extended  by  construction." 
—  Van  Voorhis  v.  Brintnall,  86  N.  Y.  18.  But  under  the  New  York  statutes 
remarriage  within  New  York  constitutes  bigamy.     People  v.  Faber,  92  N.  Y.  146. 


Agreement  to  Separate, 
(See  ante^  pp.  110-117.) 


PART  II. 
PARENT  AND  CHILD. 


Custody  of  the  Child. 

CORRIE  V.  CORRIE. 

42  Mich.  509. —  1880, 

Graves,  J.  This  is  a  certiorari  to  review  certain  proceedings  had 
in  the  Circuit  Court  on  habeas  corpus  between  parents  relative  to  the 
custody  of  their  child.  The  parents  are,  in  fact,  living  apart  and  the 
child,  Fannie  C.  Corrie,  who  is  a  little  over  seven  years  old,  is  with 
her  mother  in  Detroit.  The  proceedings  were  instituted  by  the 
father;  the  mother,  at  the  hearing,  exhibited  her  answer  on  oath, 
and  the  court  declined  to  transfer  the  custody. 

On  the  presentation  of  the  answer  the  petitioner  filed  a  general 
traverse,  but  without  oath.  He  offered  no  sworn  contradiction  or 
explanation  of  the  matters  in  the  answer,  and  no  evidence  was 
adduced  on  either  side.  He  contends  that  such  matters  in  his  peti- 
tion as  were  not  particularly  met  by  the  answer  were  admitted,  and 
that  sufficient  was  then  made  out  to  entitle  him  to  an  order  for  the 
custody  of  the  child.  On  the  other  hand,  the  respondent  claims  that 
the  facts  set  forth  in  the  answer,  to  which  no  sworn  denial  has  been 
attempted,  and  which,  as  is  said,  must  therefore  be  taken  as  true  for 
the  purpose  of  this  proceeding,  are  full  to  show  the  unfitness  of  the 
petitioner  for  the  trust  he  seeks,  and  constitute  a  complete  reply  to 
the  application. 

In  contests  of  this  kind  the  opinion  is  now  nearly  universal  that 
neither  of  the  parties  has  any  rights  that  can  be  allowed  to  seriously 
militate  against  the  welfare  of  the  child.  The  paramount  considera- 
tion is  what  is  really  demanded  by  its  best  interests.  It  is  doing  no 
violence  to  what  is  taught  by  judicial  experience  to  assume  that  the 
disputing  parties  will  be  more  alive  to  the  satisfaction  of  their  own 
feelings  and  interests  than  to  the  true  end  of  the  inquisition ;  while 
the  innocent  subject  of  the  contention  is  utterly  unable  to  speak  or 
act  for  itself,  and  is  in  danger  of  being  lost  sight  of  in  the  strife  for 
its  possession.  No  other  occasion  can  call  more  loudly  for  judicial 
vigilance  in   reaching  for  the  exact  truth,  and  in   putting  aside  with 

fas  3] 


3-4  PARENT   AND    CHILD. 

an  unsparing  hand  the  mere  technicalities  of  procedure.  The  fate 
or  interest  of  the  child  is  not  to  depend  on  what  the  parties  may  see 
proper  to  state  or  to  evade  in  their  formal  altercations,  nor  on  any 
artificial  rule  of  pleading.  There  should  be  full  inquiry  and  an  ex- 
haustive examination  on  oath  in  order  that  the  tribunal  may  have  all 
the  light  practicable. 

As  already  stated,  the  hearing  below  proceeded  on  the  petition 
and  answer,  and  the  petitioner  did  not  assume  to  controvert  any  of 
the  facts  alleged  on  oath  by  the  respondent.  As  these  facts,  if  true, 
were  sufficient  to  show  that  the  petitioner  was  not  a  suitable  person 
to  take  charge  of  the  child,  we  fail  to  see  that  any  case  was  made 
out  to  require  a  shift  of  the  custody.  We  deem  it  proper  to  add 
that  we  do  not  re-examine  on  certiorari  the  evidence  upon  the  hear- 
ing in  habeas  corpus.  We  are  confined  to  questions  of  law.  If  a 
consideration  of  evidence  is  required,  we  suppose  the  proper  way  to 
be  to  take  a  habeas  corpus  from  this  court. 

The  order  is  affirmed  with  costs. 

The  other  justices  concurred. 


The  Chancellor  in  MERCEIN  v.  THE  PEOPLE. 
25  Wend.  (N.  Y.)  64,  93. —  1840. 

[The  chancellor  in  delivering  orally  his  opinion,  said:]  It  had, 
however,  been  argued  at  great  length  here,  and  the  American  cases 
referred  to  showed  it  to  be  the  established  law  of  this  country  that 
the  court,  or  officer,  were  authorized  to  exercise  a  discretion,  and 
that  the  father  was  not  entitled  to  demand  a  delivery  of  the  child  to 
him,  upon  habeas  corpus^  as  an  absolute  right.  That  this  was  also 
the  law  of  England  at  the  time  of  our  separation  from  the  mother 
country;  though,  he  said,  the  decisions  of  the  English  courts  since 
that  period,  appeared  to  have  gone  back  to  the  principles  of  a  semi- 
barbarous  age,  when  the  wife  was  the  slave  of  the  husband,  because 
he  had  the  physical  power  to  control  her,  and  when  the  will  of  the 
strongest  party  constituted  the  rule  of  right.  Thus  in  De  Manne- 
ville' s  Case.,  5  East,  220,  the  Court  of  King's  Bench  refused  to  inter- 
fere, although  a  brutal  husband  had  torn  a  child  only  eight  months 
old  from  the  breast  of  its  mother,  for  the  mere  purpose  of  coercing 
his  wife  to  give  him  the  control  of  her  property.  Also  in  Skinner' s  Case., 
9  J.  B.  Moore's  R.  278,  the  child  was  kept  from  its  mother  under 
the  control  of  her  husband  and  his  mistress,  with  whom  he  was  living 
in  open  adultery;  and  yet  the  courts  refused  to  interfere  by  habeas 
corpus  to  restore  the  child  to  the  innocent  and   much   injured    wife 


MAINTENANCE   OF   THE   CHILD.  325 

and  mother.  In  both  of  these  cases,  however,  the  child  was  in  the 
custody  of  the  father,  and  it  was  the  mother  who  sued  out  the  writ 
to  endeavor  to  induce  the  court  to  take  that  custody  from  him.  But 
in  the  subsequent  case  of  Greenhill,  4  Ad.  &  Ellis,  624,  the  child- 
ren were  in  the  custody  of  their  mother,  and  the  husband,  who  was 
living  in  adultery  with  another  woman,  brought  a  habeas  corpus  and 
obtained  an  order  upon  his  wife  to  deliver  up  the  children  to  him, 
and  the  injured  wife,  in  that  case,  was  actually  compelled  to  flee 
with  her  children  to  a  foreign  land,  to  obtain  protection  against 
the  inhumanity  and  immorality  of  what  was  then  declared  to  be  the 
English  law.  That  it  was  in  reference  to  this  last  case  that  Lord 
Denman,  C.  J.,  of  the  Court  of  King's  Bench,  who  had  concurred  in 
the  decision,  in  accordance  with  what  he  supposed  the  recent  cases 
had  then  settled  as  law,  declared  in  the  House  of  Lords,  that  the 
state  of  the  law  on  this  subject  was  such  as  to  make  all  the  judges 
ashamed  of  it;  and  that  Serjeant  Talfourd,  to  his  everlasting  honor, 
although  he  had  been  the  counsel  for  the  husband,  immediately 
brought  a  bill  into  parliament  to  change  the  law,  and  to  restore  the 
mother  to  her  natural  right  to  be  put  upon  an  equality  with  her  hus- 
band in  relation  to  the  care  and  custody  of  her  children  within  the 
age  of  nurture,  and  finally  succeeded  in  carrying  his  bill  through 
both  houses  of  parliament,  by  a  large  majority;  though  it  was  once 
defeated  in  the  House  of  Lords. 


Maintenance  of  the  Child.  * 
KELLEY  V.  DAVIS. 

49  N.  H.  187.— 1870. 

Assumpsit  by  Alfred  Kelley,  surviving  partner  of  Kelley  &  Cleasby, 
against  John  K.  Davis,  for  goods  sold  and  delivered  by  the  plaintiffs 
to  Gilbert  C.  Davis,   the  minor  son  of  the  defendant,   during  the 

'  Protection  of  the  Child.  "  From  the  duty  of  maintenance  we  may  easily- 
pass  to  that  of  protection,  which  is  also  a  natural  duty,  but  rather  permitted 
than  enjoined  by  any  municipal  laws;  nature  in  this  respect,  working  so  strongly 
as  to  need  rather  a  check  than  a  spur.  A  parent  may,  by  our  laws,  maintain 
and  uphold  his  children  in  their  lawsuits,  without  being  guilty  of  the  legal  crime 
of  maintaining  quarrels.  A  parent  may  also  justify  an  assault  and  battery. 
*  *  *  "  Blackstone,  Commentaries,  I.  450.  But  a  parent  has  been  held  not 
bound  to  pay  counsel  fees  for  the  defence  of  his  minor  son  upon  the  son's  trial 
for  murder.     Hill  v.  Childress,  10  Yerg.  (Tenn.)  514. 

Education  of  the  Child.  Though  it  is  sometimes  said  in  judicial  dicta  that 
there  is  a  duty  upon  the  parent  to  educate  his  children,  it  seems  to  be  a  moral 


:;26  l'AKi:.\r   AND    elllLU. 

winter  of  i<S06,  to  the  amount  of  $58.33.  The  plaintiffs  sought  to 
charge  the  defendant  on  the  ground  that  the  goods  sold  to  said  Gil- 
bert were  necessaries,  suitable  to  his  degree  and  station  in  life,  and 
that  the  father,  the  defendant,  should  pay  for  them. 

Foster,  I.  "  The  duty  of  parents  to  i)rovide  for  tiie  maintenance 
of  their  children,"  says  Blackstone,  "  is  a  principle  of  natural  law." 
"It  is  an  obligation,"  says  Puffendorf,  "  laid  on  them  not  only  by 
nature  herself,  but  by  their  own  proper  act  in  bringing  them  "into 
the  world;  for  they  would  be  in  the  highest  manner  injurious  to  their 
issue,  if  they  only  gave  their  children  life  that  they  might  afterwards 
see  them  perish.  And  thus  the  children  have  a  perfect  right  of 
receiving  maintenance  from  their  parents."  "But,"  says  Mr.  Wen- 
dell in  his  note  3,  to  i  Bl.  Com.  448,  "the  common  law  of  England 
never  afforded  any  means  of  enforcing  this  right;"  and  Mr.  Chitty, 
in  his  note  to  i  Bl.  Com.  458a,  says  "there  is  no  legal  obligation  on 
a  parent  to  maintain  his  child,  independent  of  the  statutes;  and, 
therefore,  a  third  person,  who  may  relieve  the  latter,  even  from  abso- 
lute want,  cannot  sue  the  parent  for  reasonable  remuneration,  unless 
he  expressly  or  impliedly  contracted  to  pay."  In  support  of  this 
proposition  he  cites  Le  Blanc,  J.,  in  3  East,  85,  T.  Raym.  260; 
Palmer,  559,  and  2  Stark.  551. 

And  such,  therefore,  is  the  condition  of  the  common  law  in  this 
country.  Gordon  v.  Potter,  17  Vt.  348.  Neither  do  the  statutes  of 
New  Hampshire  afford  any  remedy  for  enforcing  this  right,  against 
a  parent  so  reckless  of  moral  duty  as  to  refuse  to  recompense  a  neigh- 
bor who  may  have  relieved  the  want  and  suffering  of  his  child.  Our 
statute  laws,  like  the  English  statutes  of  43  Eliz.  and  5  Geo.  i,  from 
which  they  were  borrowed,  are  intended  only  for  the  indemnity  of 
the  public  against  the  maintenance  of  paupers,  and  not  for  the  reim- 
bursement of  an  individual  who  may  have  relieved  the  necessities  of 
a  poor  person  in  suffering  and  distress;  and  under  our  statute  no 
action  can  be  sustained  against  a  parent  to  recover  for  necessaries 
furnished  to  his  child,  except  by  the  town,  and  after  notice  to  the 
person  chargeable.  Gen.  Stats,  ch.  74;  Farmingtofi  v.  yones,  36 
N.  H.   271. 

This  view  of  the  matter  may,  at  the  first  glance,  seem  startling, 
as  opposed  to  our  natural  sense  of  justice;  since  the  duty  of  parents 
to  provide  reasonably  for  the  maintenance  and  education  of  their 
children,  until  they  shall  be  of  sufficient  age  and  capacity  to  provide 
for  themselves,  is  so  clearly  obvious  to  the  mind  and  conscience,  and 

and  not  a  legal  duty.  See  Schouler,  Domestic  Relations,  4th  ed.,  §  235,  and 
Tiffany,  Persons  and  Domestic  Relations,  §  118,  and  cases  cited.  See,  also, 
Hettinger  v.  Hettinger,  90  Va.  271,  reported  herein,  supra.  That  it  is  a  legal 
duty,  Collins -v.  Cory,  17  Times  Law  Reports,  242  1190U. 


MAINTENANCE    OF   THE    CHILD.  32/ 

SO  clearly  prescribed  by  the  positive  precepts  of  religion,  (for  St.  Paul 
says  that  "if  any  provide  not  for  his  own,  and  especially  for  those  of 
his  own  house,  he  hath  denied  the  faith  and  is  worse  than  an  in- 
fidel "),that  a  violation  of  this  duty,  should,  it  would  seem,  be  visited 
with  severe  punishment  by  human  laws. 

But  the  reasoning  for  this  seeming  defect  in  the  law  is  said  by 
Mr.  Chitty  to  be  that  the  "common  law  considered  moral  duties  of 
this  nature  as  better  left  in  their  performance  to  the  impulses  of 
i>ature;  or,  as  Chancellor  Kent  remarks,  2  Com.  189,  "the  obliga- 
tion of  parental  duty  is  so  well  secured  by  the  strength  of  natural 
affection,  that  it  seldom  requires  to  be  enforced  by  human  laws." 
Paley's  Moral  Philosophy,  226.  Therefore  the  liability  of  the  parent, 
in  England  and  in  this  country  is,  as  we  have  seen,  founded  solely 
upon  contract,  express  or  implied. 

But,  notwithstanding  the  feeble  and  scanty  provisions  of  the  com- 
mon and  statute  law  in  this  respect,  it  is  held  to  be  an  indictable  offence 
on  the  part  of  a  parent,  of  sufificient  ability,  to  refuse  or  neglect  to 
provide  sufficient  food,  bedding,  etc.,  to  the  injury  of  the  health 
of  any  infant  of  tender  years,  servant,  apprentice  or  child,  unable 
to  provide  for  itself,  whom  the  party  is  obliged  by  duty  or  contract 
to  provide  for.  Rex  v.  Friend,  Russ.  &  Ryan's  Cr.  Cas.  20;  In  the 
Matter  of  Ryder,  11  Paige  Ch.  185. 

On  the  other  hand,  the  obligation  of  a  parent,  where  the  circum- 
stances are  such  as  to  authorize  the  implication  of  a  promise  or  con- 
tract to  pay  for  necessaries  provided  by  another  for  his  child,  is  not 
unrestricted  in  its  requirements,  but  is  guarded  by  wise  and  reason- 
able limitations.  "For  the  policy  of  our  laws"  (says  Blackstone) 
"which  are  ever  watchful  to  promote  industry,  did  not  mean  to 
compel  a  father  to  maintain  his  idle  and  lazy  children  in  ease  and 
indolence;  but  thought  it  unjust  to  oblige  the  parent  against  his  will 
to  provide  them  with  superfluities  and  other  indulgences  of  fortune, 
imagining  that  they  might  trust  to  the  impulse  of  nature,  if  the  chil- 
dren were  deserving  of  such  favors."  i  Bl.  Com.  449.  And  by  Stat- 
ute 59  Geo.  Ill,  ch.  12,  sec.  26,  the  penalty  on  refusal  of  the  father  to 
provide  such  maintenance  for  his  minor  children  as  two  justices  of 
the  peace  shall  direct,  is  no  more  than  twenty  shillings  a  month, 
though  the  amount  of  maintenance  is  not  limited  by  the  amount  of 
the  penalty  for  disobedience,  and  the  father's  goods  may  be  re- 
strained therefor. 

The  legal  obligation  of  the  father,  therefore,  to  pay  for  necessaries 
furnished  a  minor  child  rests  upon  contract  alone;  and  where  a 
parent  gives  no  authority,  and  enters  into  no  contract,  he  is  nO  more 
liable   to  pay  a  debt  contracted  by  his  child,  even  for  necessaries, 


328  PARENT   AND   CHILD. 

than  a  mere  stranger  would  be.  Chitty  Cont.  166  (loth  Am.  ed.) 
In  declaring  this  proposition  the  learned  author  is  sustained  by  a 
strong  current  of  authorities. 

Thus,  in  Shclton  v.  Springett,  20  Eng.  L.  &  Eq.  281,  it  is  said,  "a 
father  is  not  liable  on  a  contract  made  by  his  minor  child,  even  for 
necessaries  furnished,  unless  an  actual  authority  be  proved,  or  the 
circumstances  be  sufficient  to  imply  one;"  and  it  is  also  said,  in  the 
same  case,  that  the  mere  obligation  to  provide  for  the  child's  main- 
tenance, affords  no  legal  inference  of  a  promise. 

And  in  Mortimer  v.  Wright,  6  M.  &  W.  482,  Lord  Abinger  said: 
"In  point  of  law,  a  father  who  gives  no  authority,  and  enters  into  no 
contract,  is  no  more  liable  for  goods  supplied  to  his  son  than  a 
brother,  or  an  uncle,  or  a  mere  stranger  would  be."  And  that  "the 
mere  moral  obligation  on  the  father  to  maintain  his  child,  affords  no 
inference  of  a  legal  promise  to  pay  his  debts. "  "  To  bind  the  father, 
in  point  of  law,  for  the  debt  incurred  by  his  son,  you  must  prove 
that  he  has  contracted  to  be  bound,  just  in  the  same  manner  as  you 
would  prove  such  a  contract  against  any  other  person;"  and  Parke,  B. 
said  a  father  was  under  no  legal  obligation  to  pay  his  son's  debts, 
except,  indeed,  by  proceedings  under  the  statute;  the  mere  moral 
obligation  imposing  no  legal  liability.  See,  also,  Blackburn  v.  Mackey, 
I  C.  &  P.  I ;  Fluck  v.  Tol/emache,  Id.  5 ;  Rolfe  v.  Abbott,  6  C.  &  P. 
286;  Gordon  v.  Potter,  17  Vt.  348;  Varney  v.  Young,  11  Vt.  260;  Ray- 
mond V.  Loyl,  10  Barb.  483;  Chilcott  v.  Trumble,  13  Barb.  502;  2 
Kent's  Com.  190,  note  3  (nth  ed.). 

Although  the  rule  has  not  been  declared  in  terms  so  strong 
and  explicit  by  our  own  courts,  still,  we  think  the  decisions  in  this 
state  are  not  in  conflict,  but  in  accordance  with,  the  rule  as  hereto- 
fore stated  and  as  applied  in  the  cases  to  which  we  have  referred. 

Our  courts  seem  to  have  followed  the  decision  in  Van  Valkinburg 
v.  Watson,  13  Johns.  480,  in  which  it  is  said  that  "if  the  parent  ne- 
glects that  duty"  (to  furnish  necessaries  for  his  infant  children) 
"any  other  person  who  supplies  such  necessaries,  is  deemed  to  have 
conferred  a  benefit  on  the  delinquent  parent,  for  which  the  law 
raises  an  implied  promise  to  pay  on  the  part  of  the  parent." 

It  is  obvious  here  that  the  necessity  for  a  contract — "promise"  — 
is  not  dispensed  with,  but  expressly  declared,  in  the  learned  chan- 
cellor's view  of  the  case;  and  the  rule  as  stated  by  him  is  shown  to 
be  not  less  stringent  than  that  declared  by  Abinger,  C.  B.,  Parke  B. 
&  Mr.  Chitty,  when  practically  applied,  for,  in  the  same  case,  the 
party  furnishing  the  goods  to  the  minor  child  is  held  to  the  exercise 
of  extreme  diligence  in  inquiring  into  the  condition  of  the  parties, 
parent  and  child,  before  he  can  ask  a  jury  to  find  from  the  circum- 


MAINTENANCE   OF   THE   CHILD.  329 

Stances  of  the  case  an  implied  promise  on  the  part  of  the  parent; 
and,  "what  is  actually  necessary,"  he  says,  "will  depend  upon  the 
precise  situation  of  the  infant,  and  which  the  party  giving  the  credit 
must  be  acquainted  with  at  his  peril." 

And  we  do  not  understand  the  case  of  Pidgin  v.  Cram,  8  N.  H. 
352,  as  going  to  the  extent  of  dispensing  with  the  necessity  for  a 
contract  or  promise  on  the  part  of  the  parent,  as  the  essential 
foundation  of  his  legal  obligation,  but  only  as  indicating  what  cir- 
cumstances are  essential  and  indispensable  to  the  implication  of  such 
promise.  It  is  there  said,  following  the  language  of  the  court  in 
Van  Valkinburgh  v.  IVatson,  that  "in  general,  a  parent  is  under  a 
natural  obligation  to  furnish  necessaries  for  his  infant  children;  and 
if  the  parent  neglect  that  duty,  any  person  who  supplies  such  neces- 
saries is  deemed  to  have  conferred  a  benefit  on  the  delinquent 
parent,  for  which  the  law  raises  an  implied  promise  to  pay  on  the 
part  of  the  parent." 

The  learned  Ch.  J.  Richardson  then  continues  as  follows:  "But 
in  order  to  authorize  any  person  to  act  for  the  parent  in  such  a  case, 
there  must  be  a  clear  and  palpable  omission  of  duty  in  that  respect 
on  the  part  of  the  parent." 

If  by  the  use  of  these  terms  the  learned  chief  justice  intended  to 
say  that  the  law  implies  a  promise  from  such  a  "palpable  omission 
of  duty"  as  is  evinced  by  an  absolute  refusal,  deliberately  expressed, 
to  provide  for  the  necessities  of  his  minor  children,  we  should  not 
be  able  to  assent  to  such  a  declaration.  On  the  contrary,  to  use  the 
language  of  Parsons,  C.  J.,  in  Whiting  v.  Sullivan,  7  Mass.  109,  "as 
the  law  will  not  generally  imply  a  promise  where  there  is  an  express 
promise,  so  the  law  will  not  imply  a  promise  of  any  person  against 
his  own  express  declaration ;  because  such  declaration  is  repugnant 
to  any  implication  of  a  promise." 

But  this  proposition  must  be  taken  with  the  qualification  that 
where  a  legal  duty  —  not  a  mere  moral  obligation  —  is  imposed  upon 
the  party  making  the  negative  declaration,  the  law,  (by  force  of  an 
indispensable  fiction),  will  imply  a  promise,  even  against  the  party's 
strongest  protestations;  as  in  the  case  of  taxes,  or  the  claims  of  a 
town,  founded  on  the  statute,  for  reimbursement  for  relieving  pau- 
pers. "In  the  civil  law,'  those  contracts,  which  correspond  to  the 
implied  contracts  of  the  common  law,  are  denominated  obligationes 
quasi  ex  contractu,  and  Heineccius  denies  that  they  are  founded  on 
contract."      See  Metcalf  on  Contracts,  5,  8,  167.     See  Pot.  Obi.  115. 

In  the  case  of  Pidgin  v.  Cram,  there  was  held  to  be  no  liability; 
and  the  verdict  for  the  plaintiff  was  set  aside  upon  grounds  thus 
stated  by  the  court:     "Here  the  daughter  was  nearly  of  the  age  of 


330  PARENT   AND    CHILD. 

fifteen,  and  was  residiny;  witli  licr  mother  when  tlu-  articles  were  fur- 
nished. She  may  have  been  capable  of  furnishing  herself  with  every 
necessary,  by  her  own  exertions.  It  does  not  appear  that  any  appli- 
cation was  ever  made  to  the  defendant  for  any  assistance.  For 
aught  that  appears  he  may  have  been  ready  and  willing  to  furnish 
all  that  was  wanted.  The  evidence  in  this  case  was  not,  then,  suffi- 
cient to  entitle  the  plaintiff  to  a  verdict  for  the  supplies  furnished  to 
the  daughter." 

To  the  same  effect  is  Toivtisend  y.  Burnham^  22  N.  H.  277. 

In  Farmington  v.  Jones,  Perley,  C.  J.,  says:  "It  does  not  appear 
that  the  support  was  furnished  at  the  defendant's  request,  or  that 
he  has  made  any  express  promise  to  pay.  The  plaintiff  must  rely 
upon  a  promise  implied  in  law  from  the  facts  stated  in  the  report  of 
the  auditor."  The  claim  in  that  case  was  for  support  furnished  the 
defendant's  daughter  while  sick  with  the  small-pox  and  detained  in 
the  house  where  she  was  visiting,  the  same  being  established  as  a 
pest-house  by  the  officers  of  the  town ;  and  it  was  held  that  the  facts 
were  not  such  as  to  raise  the  implication  of  a  promise  to  pay. 

Now,  although  one  of  the  earlier  cases  in  this  state,  Hillsborough  v. 
Deering,  4  N.  H.  86,  declares  (erroneously  as  we  think)  the  obligation 
of  parents  to  support  their  children  to  be  a  requirement  of  the  com- 
mon law,  independent  of  any  statute;  it  is  not  apparent  that  any 
attempt  has  ever  been  made  to  enforce  such  obligation,  otherwise 
than  upon  the  ground  of  a  contract  or  promise  on  the  part  of  the 
parent  sought  to  be  charged,  nor  has  it  ever  been  claimed  that  mere 
moral  obligation  or  duty  raises  any  implication  of  a  promise  or 
contract. 

In  French  v.  Betiton,  44  N.  H.  30,  Bellows,  J.,  remarks  (concerning 
the  assuniption  of  the  plaintiff's  counsel,  in  the  argument  of  that 
cause,  that  the  father  by  a  palpable  omission  of  duty,  such  as  turn- 
ing the  child  out  of  doors  and  refusing  to  provide  for  him,  enables 
the  child  to  pledge  his  father's  credit  for  necessaries)  that  "there  is 
much  conflict  of  the  authorities,  but  the  settled  doctrine  of  the  Eng- 
lish courts  now  seems  to  be  that  the  moral  obligation  of  the  parent 
to  support  his  minor  child  imposes  no  obligation  to  pay  his  debts, 
unless  he  has  given  him  authority  to  incur  them,  and  that  the  con- 
tract of  the  father  must  be  proved,  just  in  the  same  manner  as  if  he 
were  a  brother,  son,  or  stranger." 

"  The  early  New  York  cases  held  that  a  clear  and  palpable  omis- 
sion of  duty  by  the  parent  would  give  the  child  credit  and  render 
the  parent  liable  for  necessaries,"  citing  Van  Valkinburgh  \ .  Watson 
and  other  cases.  "In  the  later  case  of  Raymond  v.  Loyl,  10  Barb. 
483,  the  cases  sustaining  this  doctrine  are  examined  and  questioned. 


MAINTENANCE   OF    THE   CHILD.  33 1 

and  the  conclusion  finally  reached  that  there  is  no  legal  obligation 
to  maintain  a  minor  son,  independent  of  statute. ' '  And  he  continues 
as  follows:  "  Without  undertaking  to  decide  what  is  the  law  of 
New  Hampshire,  it  is  quite  evident  that  the  tendency  of  the  modern 
authorities  is  to  limit  the  liability  of  the  parent  for  necessaries  to 
cases  where  they  are  furnished  at  his  request,  express,  or  to  be  in- 
ferred by  a  jury  from  circumstances,  upon  the  general  ground  as 
stated  in  Brainbridge  v.  Pickering,  2  W.  Black.  1325,  that  no  one  shall 
take  it  '  upon  him  to  dictate  to  a  parent  what  clothing  a  child  shall 
wear,  at  what  time  they  shall  be  purchased,  or  of  whom.  All  that 
must  be  left  to  the  discretion  of  the  father  and  mother.'  A  similar 
tendency  exists  in  respect  to  promises  founded  upon  the  considera- 
tion of  moral  obligations;  and  it  may  now  be  considered  as  settled 
that  such  considerations  will  not  be  regarded  as  sufficient,  unless 
a  valid  legal  obligation  had  once  existed,  although  afterward  barred 
by  some  statute  or  positive  rule  of  law." 

On  the  whole,  the  principles  of  law  applicable  to  this  class  of  cases 
seem  to  take  the  form  of  these  propositions:  That  a  parent  can- 
not be  charged  for  necessaries  furnished  by  a  stranger  for  his  minor 
child,  except  upon  a  promise  to  pay  for  them,  and  that  such  promise 
is  not  to  be  implied  from  mere  moral  obligation,  nor  from  the 
statutes  providing  for  the  reimbursement  of  towns;  but  the  omis- 
sion of  duty  from  which  a  jury  may  find  a  promise  by  implication 
of  law  must  be  a  legal  duty,  capable  of  enforcement  by  process  of 
law. 

In  accordance  with  these  principles,  it  will  be  for  the  jury  to  say, 
in  a  given  case,  whether  all  the  facts  and  circumstances  warrant  the 
finding  of  a  promise,  express  or  implied. 

In  reaching  a  result  they  will  be  at  liberty,  of  course,  and  will  be 
likely  to  take  into  consideration  all  the  circumstances  connected 
with  the  parent's  neglect,  as  indicating  his  intention,  views  and  pur- 
poses with  regard  to  the  wants  of  his  child,  and  the  weight  and  con- 
trolling influence  of  all  the  evidence,  governed  by  the  rules  of  law 
as  we  have  endeavored  to  promulgate  them,  will  undoubtedly  seldom 
fail  to  result  in  substantial  justice  and  equity. 

Let  us  then  apply  these  considerations  to  the  case  before  us.  It 
is  quite  apparent,  from  the  conduct  of  the  minor  with  regard  to  the 
articles  purchased,  that  a  large  proportion  of  them  were  in  no  sense 
necessary  for  the  comfort,  support  or  convenience  of  the  minor  at 
the  time  they  were  purchased.  The  fur  collar,  the  kid  gloves,  the 
rubber  shoes,  the  boots  and  the  trousers  were  all  made  "objects  of 
trade"  by  the  young  man,  and  the  suit  of  clothes,  he  says,  he  did 
not  need. 


33-  PARENT   AND    CHILD. 

The  inference  from  the  statement  of  the  case  is  that  these  articles 
were  all  deducted  from  the  plaintiff's  account  and  that  the  balance 
for  which  the  verdict  was  rendered  consisted  of  actual  necessaries. 
But  there  was  no  express  promise  by  the  father  to  pay  for  them,  and 
we  are  unable,  from  the  facts  and  circumstances  disclosed,  to  raise 
any  implication  of  a  promise  from  any  clear  and  palpable  omission  of 
duty  on  the  part  of  the  parent. 

Indeed,  the  verdict  of  the  court  is  not  placed  upon  any  such 
grounds  but  only  upon  these,  namely:  That  the  father  had  suffi- 
cient means  to  yield  support  to  his  son  when  he  gave  him  his  time, 
that  he  was  bound  to  have  furnished  him  a  better  education,  or  more 
parental  care  than  the  son  has  received,  and  before  he  was  turned 
adrift  upon  the  world.  And  for  this  failure  of  duty,  which  the  law 
properly  imposes  upon  all  parents  of  his  ability,  the  defendant  is 
justly  bound  to  pay  the  balance  of  the  plaintiff's  account." 

We  cannot  regard  these  considerations  as  sufficient  to  warrant  the 
finding  of  the  court.  They  may  in  special  instances  be  worthy  of 
application  in  the  forum  of  conscience,  but  we  think  they  cannot  be 
adopted  in  general  practice  nor  admitted  in  this  particular  case.  To 
make  the  father's  liability  dependent  upon  no  other  conditions  than 
those  which  are  said  to  be  a  sufficient  foundation  for  the  verdict  of 
the  court  in  this  case,  would  be  to  expose  the  parent  to  the  ruinous 
consequences,  not  only  of  his  son's  wasteful  extravagance  and  im- 
prudence, but  also  to  the  arts  of  designing  and  unscrupulous  trades- 
men. To  follow  on  the  analogy  suggested  between  this  case  and 
that  of  Pidgin  v.  Cratn^  before  cited:  Here  the  son  was  seventeen 
years  of  age.  He  was  residing  with  the  person  whom  he  had  con- 
tracted to  serve,  for  wages  probably  sufficient  to  pay  for  all  his 
necessary  expenses.  This  fact,  and  the  fact  that  he  was  not  dis- 
charged by  his  employer,  but  left  his  service  without  any  assignable 
reason,  shows  that  he  was  capable  of  furnishing  himself  with  every 
necessity,  by  his  own  exertions.  It  does  not  appear  that  any  appli- 
cation was  ever  made  to  the  defendant  for  assistance.  For  aught 
that  appears,  he  may  have  been  ready  and  willing  to  furnish  all  that 
was  wanted. 

The  evidence,  was  not,  then,  sufficient  to  entitle  the  plaintiff  to  a 
verdict  for  the  supplies  furnished  to  the  son. 

We  have  paid  no  attention  to  the  fact  that  the  defendant  had  "in 
some  form  given  the  young  man  his  time,"  since  the  plaintiff  was 
not  informed  of  that  fact,  and  we  have  not  regarded  it  as  material 
in  this  case. 

Verdict  set  aside  and  new  trial  granted. 


MAINTENANCE    OF   THE   CHILD.  333 

VAN  VALKINBURGH  v.  WATSON. 

13  Johns.  (N.  Y.)  480. —  1816. 

In  error,  on  certiorari  to  a  Justice's  Court. 

The  defendants  in  error  brought  an  action  in  the  court  below 
against  the  plaintiff  in  error,  for  necessaries  furnished  by  them  to  his 
infant  son.  On  the  trial,  it  appeared  that  the  son  of  the  defendant 
below  came  to  the  store  of  the  plaintiffs  below,  and  purchased  a 
coat  for  himself;  but  there  was  no  evidence  that  it  was  done  with 
his  father's  consent.  The  defendant  proved  that  his  son  lived  in 
his  family,  and  was  comfortably  and  decently  clothed,  according  to 
his  circumstances.  A  verdict  and  judgment  were  given  for  the 
plaintiffs  in  the  court  below. 

Per  Curiam.  A  parent  is  under  a  natural  obligation  to  furnish 
necessaries  for  his  infant  children;  and  if  the  parent  neglect  that 
duty,  any  other  person  who  supplies  such  necessaries  is  deemed  to 
have  conferred  a  benefit  on  the  delinquent  parent,  for  which  the  law 
raises  an  implied  promise  to  pay  on  the  part  of  the  parent.  But 
what  is  actually  necessary  will  depend  on  the  precise  situation  of  the 
infant,  and  which  the  party  giving  the  credit  must  be  acquainted 
with,  at  his  peril.  Simpson  v.  Robertson,  i  Esp.  Rep.  17;  Ford  v. 
Fothergill,  Id.  211.  In  the  case  of  Bainbridge  v.  Pickering  (2  Wm. 
Black.  Rep.  1325),  Gould,  J.,  says  with  great  propriety,  "No  man 
shall  take  upon  him  to  dictate  to  a  parent  what  clothing  the  child 
shall  wear,  at  what  time  they  shall  be  purchased,  or  of  whom;  all 
that  must  be  left  to  the  discretion  of  the  father  or  mother."  Where 
the  infant  is  sub  potestate  parentis,  there  must  be  a  clear  and  palpa- 
ble omisson  of  duty,  in  that  respect,  on  the  part  of  the  parent,  in 
order  to.  authorize  any  other  person  to  act  for,  and  charge  the  ex- 
pense to,  the  parent.  In  this  case  there  is  no  ground  to  charge  the 
father  with  any  neglect  of  duty  in  providing  necessaries  for  his  child, 
and  the  judgment  must  be  reversed. 

Judgment  reversed. 

'  For  a  review  of  subsequent  New  York  cases  on  the  liability  of  a  parent  for 
necessaries  supplied  to  the  child,  see,  Manning  v.  Wells  (Supreme  Ct.  Special 
Term),  8  Misc.  646  (1894). 

"  Now,  the  duty  of  the  child,  of  sufficient  ability  to  maintain  its  poor  and  des- 
titute parents,  being  an  imperfect  one,  not  enforced  at  the  common-law,  and  the 
statute  having  prescribed  the  manner  in  which  it  is  to  be  enforced,  and  the  ex- 
tent of  the  penalty,  the  statute  remedy  is  the  only  3ne  to  be  resorted  to.  This 
principle  was  recognized  by  this  court  in  Almy  v.  Harris,  5  Johns.  Rep.  175. 
Then,  the  consequence  necessarily  follows,  that  no  one  who  has  afforded  relief 
to  indigent  persons,  from  motives  of  humanity,  or  from  any  other  consideration. 


334  PARENT    AND    CHILD. 

COOPER  ;•.  McNAMARA. 

92  1a.  243.—  1894. 

Action  to  recover  the  value  of  board  and  the  use  of  a  room  fur- 
nished by  the  plaintiff  to  the  minor  son  of  defendant.  There  was  a 
trial  by  the  court  on  an  agreed  statement  of  the  facts,  and  a  judgment 
for  plaintiff  for  the  amount  of  her  claim.  The  defendant  appeals. 
Affirmed. 

Robinson,  J.  The  cause  is  submitted  in  this  court  on  a  certificate 
of  the  trial  judge,  which  shows  facts  as  follows:  The  defendant  has 
been  married  twice,  the  first  time  to  A.  W.  Fowler.  In  April,  1873, 
she  gave  birth  to  a  son,  who  was  named  Arthur  Fowler.  In  1886, 
she  was  divorced  from  her  husband,  and  by  the  decree  of  divorce  she 
was  awarded  the  custody  of  the  son.  Soon  after  that  time,  Arthur 
commenced  working  for  himself,  under  an  agreement  with  his  mother 
that  he  should  receive  all  his  wages.  From  that  time  until  Novem- 
ber, 1890,  he  worked  continuously,  received  his  wages,  and  clothed 
and  provided  for  himself,  except  that  he  slept  at  the  home  of  his 
mother,  and  she  washed  and  mended  his  clothes  without  compensa- 
tion, and  did  not  receive  any  part  of  his  wages.  After  about  the 
ist  of  November,  1890,  he  worked  during  a  short  time  for  his  father. 
Since  that  time  he  has  not  had  continuous  employment,  but  has  had 
the  money  which  he  earned,  for  his  own  use.  He  is  large  and 
healthy.  In  March,  1891,  his  mother,  having  married  again,  moved 
to  Sloan,  where  she  has  since  resided.  She  has  a  comfortable  home 
there,  and  at  all  times  has  been  willing  that  Arthur  should  remain 
with  her,  and  has  been  ready  to  provide  for  him  in  a  suitable  and 
])roper  manner.  When  she  moved  to  Sloan  he  remained  in  Sioux  City, 
to  obtain  work  for  himself,  and  continued  there  until  on  or  about 
the  2ist  day  of  January,  1892.  The  defendant  never  agreed  to  pay 
his  board  and  expenses  when  away  from  her  home,  nor  said  that  she 
would  be  responsible  for  him  in  any  manner.  During  that  time  her 
son  was  furnished  the  use  of  a  room  and  board  by  the  plaintiff,  of  the 
value  of  $131.27,  for  which  he  has  paid  only  the  sum  of  $48.  The 
plaintiff  had  no  knowledge  that  Arthur  was  working  for  himself  and 
collecting  his  wages,  and  made  no  inquiry  of  him  nor  of  anyone  else 
in  regard  to  that  matter,  but  knew,  while  he  was  boarding  with  her, 
that  the  defendant  resided  at  Sloan. 

It  is  said  by  the  appellee  that  Porter  v.  Powell,  79  Iowa,  151,  44 

can  maintain  a  suit,  as  upon  an  implied  contract,  against  the  children  of  such 
parents,  arising  merely  from  the  duty  which  such  child  owes  to  its  parents  to 
support  them."     Spencer,  Ch.  J.  in  Edivayds  v.  Davis,  16  Johns.  (N.  Y.),  281,  285. 


MAINTENANCE   OP^   THE   CHILD.  335 

N.  W.  Rep.  295,  is  decisive  of  this  case.  The  cases  are  similar  in 
some  respects.  In  each  case  the  minor  was  away  from  home  with 
the  express  or  implied  consent  of  the  parent,  and  in  each  the  earn- 
ings were  controlled  by  the  minor.  In  neither  case  did  the  parent 
furnish  or  agree  to  furnish  the  minor  with  means  of  support,  nor 
had  the  parent  in  either  case  formally  emancipated  the  child,  or 
expressed  an  intention  not  to  be  liable  for  necessaries  which  might 
be  furnished  it.  But  in  the  Porter  case  the  minor  had  a  severe  attack 
of  a  dangerous  disease,  and  required  the  services  of  a  physician. 
The  occasion  was  not  one  which  admitted  of  delay  and  investigation, 
nor  was  it  in  any  proper  sense  optional  with  the  physician  whether 
he  would  perform  the  services  required.  The  dictates  of  humanity 
and  the  necessities  of  the  minor  made  it  the  duty  of  the  physician 
to  comply  with  her  request,  and  render  her  the  services  demanded. 
In  deciding  the  case,  it  was  said  that  the  duty  of  the  parent  extended 
only  to  the  furnishing  of  necessaries;  that  what  are  necessaries  in  a 
given  case  must  be  determined  by  the  facts  in  that  case;  and  that 
what  would  be  necessary  for  a  child  in  sickness  would  not  be  neces- 
sary in  health.  It  was  also  said,  in  substance,  that  the  facts  did  not 
show  an  intention  on  the  part  of  the  parent  not  to  be  responsible  for 
the  support  of  his  child  if,  in  consequence  of  sickness  or  accident, 
she  should  be  unable  to  support  herself.  This  case  does  not  involve 
an  emergency  in  which  the  needs  of  the  minor  were  great  and 
urgent,  requiring  immediate  attention.  We  may  presume  that  the 
son  of  the  defendant  was  able,  if  he  could  obtain  employment,  to  sup- 
port himself;  that  he  had  left  home  for  that  purpose,  and  had  been 
given  full  control  of  his  earnings.  It  is  the  right  of  the  parent,  in 
the  exercise  of  a  reasonable  discretion,  to  control  the  minor,  to  de- 
termine where  he  shall  reside,  and  what  he  shall  do.  It  is  the  duty 
of  the  parent  to  provide  his  minor  child  with  the  necessaries  of  life, 
and,  in  the  absence  of  evidence  to  the  contrary,  it  will  be  presumed 
that  the  minor  is  subject  to  the  control  of  the  parent,  although  away 
from  his  home,  and  that  the  liability  of  the  latter  for  necessaries 
furnished  the  minor  continues.  In  this  case  it  is  not  questioned  that 
the  board  and  room  furnished  the  minor  were  necessaries.  So  far 
as  is  shown,  he  was  under  the  control  of  his  mother  while  he  was 
boarding  with  the  plaintiff.  His  mother  was  willing  to  furnish 
him  a  home  with  her;  yet,  so  far  as  the  certificate  shows,  he  may 
have  remained  in  Sioux  City,  not  only  with  her  consent,  but  by  her 
desire,  to  obtain  employment  and  support  himself  so  far  as  he  could 
do  so,  and  to  that  extent  relieve  her  of  the  obligation  to  furnish  him 
support.  The  facts  certified  do  not  show  that  the  son  was  emanci- 
pated, nor  that  the  defendant  had  decided  not  to  furnish  him  further 


}^6  PAKKNT    AND    Cllll.l). 

support.  They  do  not  show  that  he  had  ever  supported  himself 
wholly,  nor  that  the  defendant  expected  him  to  do  so.  She  really 
claims  exemption  from  liability  in  this  case  on  the  ground  that  her 
son  was  able  to  work,  was  away  from  home,  and  controlled  his 
earnings.  But  it  is  not  the  law  that  the  parent  is  obliged  to  sup- 
port a  minor  child  only  when  he  is  at  home,  or  is  unable  to  work  for 
his  own  support,  or  when  his  earnings  are  given  to  the  parent.  If, 
however,  the  minor  refuses  to  remain  at  the  place  of  residence  his 
parent  has  provided  for  him,  and  there  receive  the  support  to  which 
he  is  entitled,  and,  in  violation  of  the  wishes  and  direction  of  the 
parent,  makes  his  home  elsewhere,  a  question  as  to  the  liability  of  the 
parent  for  the  support  of  the  minor  child  might  well  arise.  But  this 
is  not  a  case  of  that  kind.  Nothing  contained  in  the  certificate  of 
the  judge  rebuts  the  presumption,  which  the  law  authorizes  from  the 
facts  shown,  that  the  liability  of  the  defendant  for  the  support  of  her 
son  continued  while  he  was  boarding  with  the  plaintiff.  We  conclude 
that  the  certificate  shows  facts  which  justified  the  district  court  in 
rendering  the  judgment  in  question,  and  it  is,  therefore,  affirmed. 


McArthur,  J.,  IN  CARNEY  v.  BARRETT 

4  Ore.  171,  174. —  1871. 

Commercial  communication  with  infants  has  been  productive  of 
much  litigation,  and  hence  we  find  abundant  authority  to  guide  us 
to  a  correct  conclusion  in  the  case  now  in  hand. 

The  evidence  shows  that  after  the  expiration  of  the  contract  be- 
tween the  plaintiff  and  the  defendant,  the  plaintiff  allowed  the 
defendant's  minor  son,  Arthur,  to  board  and  lodge  at  his  hotel  for 
a  period  of  twelve  weeks,  notwithstanding  the  defendant  informed 
him  that  he  would  not  be  responsible  for  said  son's  board  and 
lodging,  and  the  plaintiff,  assuming  the  legal  liability  of  the  defend- 
ant therefor,  seeks  to  recover  reasonable  compensation  for  the 
entertainment  furnished. 

In  general,  a  father  is  not  liable  on  a  contract  made  by  his  minor 
child,  even  for  necessaries  furnished,  unless  an  actual  authority  is 
proved  or  the  circumstances  be  sufficient  to  imply  one.  Varney  v. 
Young,  II  Vermont,  258;  Hunt  yi .  Thompson,  3  Scammon,  179;  Angel 
v.  McLellan,  16  Mass.  28;  Van  Valkinburgh  v.  Watson,  13  Johns.  480; 
07uen  v.  White,  5  Porter,  435;  Gordon  v.  Potter,  17  Vermont,  350; 
Raymonds.  Loyl,    10  Barbour,  483. 

Actual  authority  is  not  claimed,  but  it  is  urged  that  the  circum- 


MAINTENANCE    OF    THE    CHILD. 


Stances  of  the  case  raise  the  implication  of  the  defendant's  liability 
for  the  necessaries  furnished. 

The  most  favorable  construction  for  the  plaintiff  that  can  be  put 
upon  the  testimony  flatly  negatives  any  such  implication. 


GILLEY  V.  GILLEY. 
79  Me.  292, —  1887. 

Virgin,  J.  Assumpsit  by  the  mother  against  the  father  for  their 
young  children's  necessary  support  furnished  after  a  divorce  a  w«- 
(r«/c  decreed  to  her  for  his  "  desertion  and  failure  to  support,"  he 
having  been  absent  from  the  state  several  years  prior  to  the  decree 
and  never  having  returned  or  furnished  any  support  whatever  during 
the  time,  and  no  decree  for  alimony  or  custody  of  the  children  hav- 
ing been  made. 

It  is  a  matter  of  common  knowledge  that  a  father  is  entitled  by 
law  to  the  services  and  earnings  of  his  minor  children.  It  is  equally 
well  known  that  this  right  is  founded  upon  the  obligation  which  the 
law  imposes  upon  him  to  nurture,  support  and  educate  them  during 
infancy  and  early  youth,  and  it  continues  until  their  maturity,  when 
the  law  determines  that  they  are  capable  of  providing  for  themselves. 
Benson  v.  Remington,  2  Mass.  113;  Dawes  v.  Howard,  4  Mass.  98; 
Nightingale  v.  Withington,  15  Mass.  274;  State  v .  Smith,  6  Me.  462, 
464;  Dennis  y .  Clark,  2  Cush.  352-3;  Reynolds  v.  Sweetser,  15  Gray, 
80;  Garland  v.  Dover,  19  Me.  441 ;  Van  Valkinburgh  v.  Watson,  13 
Johns.  480;  Furmanv.Van  Sise,  56  N.  Y.  435,  439,  445,  446;  2  Kent's 
Com.  *igo  et  sei/.;  Schoul.  Dom.  Rel.  321. 

In  Dennis  v.  Clark,  supra,  the  court  said:  "  By  the  common  law 
of  Massachusetts,  and  without  reference  to  any  statute,  a  father,  if 
of  sufficient  ability,  is  as  much  bound  to  support  and  provide  for  his 
infant  children,  in  sickness  and  in  health,  as  a  husband  is  bound  by 
the  same  law  and  by  the  common  law  of  England  to  support  and 
provide  for  his  wife.  And  if  a  husband  desert  his  wife  or  wrong- 
fully expel  her  from  his  house  and  make  no  provision  for  her  sup- 
port, one  who  furnishes  her  with  necessary  supplies  may  compel  the 
husband  by  an  action  at  law  to  pay  for  such  supplies.  And  our  law- 
is  the  same,  we  have  no  doubt,  in  the  case  of  a  father  who  deserts 
or  wrongfully  discards  his  infant  children."  This  upon  the  ground 
of  agency.  Reynolds  v.  Sweetser,  supra;  Hall  v.  Weir,  i  Allen,  261; 
Camerlin  v.  Palmer  Co.,  10  Allen,  539.  But  a  minor,  who  voluntarily 
abandons  his  father's  house,  without  any  fault  of  the  latter,  carries 
with  him  no  credit  on  his  father's  account  even  for  necessaries. 
fDoMESTic  Relations  —  22. 1 


S3^  PARENT   AND    CHILD. 

(Veeks  V.  MerrmVy  40  Me.  151;  Angel  v.  McLellan,  i  Mass.  27. 
Otherwise  a  child  impatient  of  parental  control  while  in  iiis  minority, 
would  be  encouraged  to  resist  the  reasonable  control  of  his  father  and 
afford  the  latter  little  means  to  secure  his  own  legal  rights  beyond 
the  exercise  of  physical  restraint.      White  v.  Henry,  24  Me.  533. 

Moreover,  in  actions  for  seduction,  whereof  loss  of  service  is  the 
technical  foundation,  the  loss  need  not  be  proved,  but  will  be  pre- 
sumed in  favor  of  the  father  who  has  not  parted  with  his  right  to 
reclaim  his  minor  daughter's  service,  although  she  is  temporarily 
employed  elsewhere.  Emery  v.  Goiven,  4  Me.  33.  "And  this  rule 
results  from  the  legal  obligation  imposed  upon  him  to  provide  for 
her  support  and  education,  which  gives  him  the  right  to  the  profits  of 
her  labor."  Blanchardv.  Illey,  120  Mass.  489;  Kennedy  v .  Shea,  no 
Mass.    147;  Emery  v.  Goiven,    supra;  Fur  man  v.    Van  Sise,  56   N.   Y. 

435,  444- 

So,  also,  in  that  large  class  of  cases  wherein  needed  supplies,  fur- 
nished by  the  town  to  minor  children  between  whom  and  their  father, 
though  they  lived  apart,  the  parental  and  filial  relations  still  sub- 
sisted, are  considered  in  law  supplies  indirectly  furnished  the  father 
—  the  reason  is  because  he  was  bound  in  law  to  support  them. 
Garland  V.  Dover,  19  Me.  441. 

We  are  aware  that  courts  of  the  highest  respectability,  especially 
those  of  New  Hampshire  and  Vermont,  hold  that  a  parent  is  under 
no  legal  obligation,  independent  of  statutory  provision,  to  maintain 
his  minor  child,  and  that  in  the  absence  of  any  contract  on  the  part 
of  the  father,  he  cannot  be  held  except  under  the  pauper  laws  o€ 
those  states  which  are  substantially  like  our  own.  Kelley  v.  Davis, 
49  N.  H.  187;   Gordon  v.  Potter,  17  Vt.  348. 

But  as  before  seen,  the  law  was  settled  otherwise  in  this  state 
before  the  separation  and  has  been  frequently  recognized  in  both 
states  since;  and  we  deem  it  the  more  consistent  and  humane 
doctrine. 

It  is  also  settled  that  at  least  during  the  life  of  the  father,  the 
mother,  in  the  absence  of  any  statutory  provision,  or  decree  relating 
thereto,  not  being  entitled  to  the  services  of  their  minor  children,  is 
not  bound  by  law  to  support  them.  Whipple  v.  Dow,  2  Mass.  415; 
Dawes  v.  Howard,  4  Mass.  97  ;  2  Kent's  Com.  *i92  ;  Weeks  v.  Merrou*, 
40  Me.  151;  Gray  v.  Durland,  50  Barb.  100;  Fur  man  v.  Van  Sise, 
supra,  both  opinions.     R.  S.  c.  59,  sec.  24. 

This  leads  to  an  inquiry  into  the  effect  of  the  divorce  a  vinculo 
alone,  unaccompanied  by  any  decree  committing  the  custody  of  the 
children  to  the  mother.  For  when  such  a  decree  is  made  then  the 
father  would  have  no  right,  either  to  take  them  into  his  custody  and 


MAINTENANCE   OF   THE   CHILD.  339 

support  them  or  employ  any  one  else  to  do  so,  without  the  consent 
of  the  mother.  Hancock  v.  Merrick^  10  Cush.  41;  Brotv  v.  Bright- 
man^  136  Mass.  187;  Finch  \.  Finch,  22  Conn.  410.  Although  it  is 
held  otherwise  in  some  jurisdictions.  Ifolt  v.  Holt,  42  Ark.  495,  and 
other  cases  on  plaintiff's  brief. 

But  a  decree  of  custody  to  the  mother  is  predicated  of  its  primarily 
belonging  by  right  to  the  father,  and  the  granting  of  it  implies  that 
such  action  on  the  part  of  the  court  is  absolutely  essential  to  impos- 
ing upon  her  the  legal  obligation  of  supporting  their  minor  children. 
So  long  as  the  father  lives,  the  mother,  in  the  absence  of  any  decree 
of  custody  in  her  behalf,  cannot  of  right  claim,  as  against  him,  their 
services,  provided  he  is  a  suitable  person  to  have  the  care  of  them. 
He  may  on  habeas  corpus  obtain  custody  as  against  their  mother,  on 
satisfying  the  court  that  he  is  a  fit  custodian.  Com.  v.  Briggs,  16 
Pick.  203. 

It  would  seem  to  follow  that  the  divorce  alone,  while  it  dissolved 
the  matrimonial  relation  between  the  parties  thereto,  did  not  affect 
in  anywise  the  parental  relation  between  them  and  their  children. 
When  the  divorce  was  decreed  in  behalf  of  his  wife  the  defendant 
thereupon  ceased  to  be  her  husband,  but  he  still  remained  the  father 
of  the  children  which  had  been  born  to  him  during  his  conjugal  rela- 
tion with  the  plaintiff,  with  all  the  father's  duties  and  legal  obliga- 
tions full  upon  him. 

The  cases  which  hold  that  in  case  of  a  decree  for  custody,  the 
father  is  not  holden,  impliedly  hold  that  in  the  absence  of  any  such 
decree,  he  is  liable.     Broiv  v.  Brightman,  supra. 

When  the  bond  of  matrimony  was  dissolved,  these  parties  became 
as  good  as  strangers;  and  the  plaintiff  may  then  maintain  an  action 
against  the  defendant  for  any  cause  of  action  which  at  least  subse- 
quently accrued.  Carlton  \.  Carlton.,  72  Me.  115;  Webster  v .  Webster., 
58  Maine,  139. 

We  are  of  opinion,  therefore,  that  this  action  is  maintainable  on  the 
implied  promise  of  the  defendant  resulting  from  the  circumstances 
and  the  law  applicable  thereto. 

Exceptions  overruled.' 

'  In  Ramsey  v.  Ramsey,  121  Ind.  215,  the  mother  sought  to  recover  from  the 
father  for  the  support  of  their  child,  born  after  the  absolute  divorce  of  the  par- 
ties. The  decree  had  not  provided  for  the  future  custody  and  support  of  the 
child,  and  the  child  had  remained  in  the  custody  of  the  mother.  It  was  held 
that  the  claim  of  the  mother  for  necessaries  supplied  to  the  child,  after  the  divorce, 
must  be  governed  by  the  same  rule  that  would  apply  in  that  jurisdiction  to  a 
stranger,  and  that  therefore  she  could  not  recover  unless  there  were  an  express 
or  implied  promise  to  pay  by  the  father.  See,  also,  Pretzinger  v.  Pretzinger\  45 
Oh.  452;   Fulton  V,  Fulton,  52  Oh.  229;   ZllU-y  v.  Dumuiddie,  gS  Wis.  428. 


340  PARENT   AND   CIIILU. 


WATTS  V.  STEELE. 


19  Ala.  656. —  1851. 

Chilton,  J.  The  question  in  this  case  is,  whether  a  father  who,  by 
reason  of  his  poverty  and  bodily  infirmity,  has  become  unable  to 
support  his  infant  daughter,  has  a  right  to  resort  to  the  court  of 
equity  which  has  appointed  a  trustee  for  the  estate  of  the  daughter, 
to  have  an  allowance  for  her  support  and  education  decreed  to  be 
paid  by  such  trustee  out  of  the  yearly  income  of  her  estate.  The 
bill  is  filed  by  the  father,  with  whom  the  daughter  lives  (the  mother 
being  dead),  against  the  trustee.     The  chancellor  dismissed  the  bill. 

We  are  unable  to  see  any  reason  why  the  court  should  repudiate 
this  jurisdiction  over  the  infant  and  her  estate.  There  is  nothing 
in  the  nature  of  the  settlement  by  which  the  property  was  secured 
to  the  mother  of  the  daughter,  forbidding  an  allowance  for  mainte- 
nance. The  ward  has  an  absolute  interest,  and  the  rule  is,  that 
where  funds  are  thus  situated,  the  court  will  allow  maintenance  in 
the  absence  of  any  direction  to  that  effect,  and  even  in  disregard  of 
a  direction  for  accumulation;  and  if  an  insufficient  sum  is  given  for 
maintenance,  the  court  will  increase  it.     McPher.  on  Inf.  241. 

As  it  is  the  duty  of  the  father  to  maintain  his  child  when  he  can 
do  so,  he  is  held  liable  to  account  as  guardian  for  the  profits  of  the 
child's  estate  which  come  to  his  possession  during  the  child's 
minority.  Such  being  his  duty,  the  courts  of  chancery  originally 
refused  to  allow  any  reimbursements  to  the  father  for  past  main- 
tenance. Hughes  V.  Hughes,  i  Bro.  C.  C.  387;  2  Id.  231;  3  Id.  60; 
Reevesy.  Prymer,  6  Ves.  424;  McP.  on  Inf.  247,  where  the  cases  are 
collated.  But  it  is  said  that  in  special  cases  the  court  may  direct 
an  inquiry  in  favor  of  the  father  for  past  maintenance.  He  cannot 
insist  on  it  as  a  matter  of  course.       Ex  parte  Bond,  2  M.  &  K.  439. 

The  case  before  us  is  for  future  maintenance  and  education  of  the 
daughter.  There  can  be  no  question  as  to  the  jurisdiction  of  the 
chancellor  in  setting  apart  a  fund  for  this  purpose  out  of  the  income 
of  the  daughter's  estate,  if  the  father  be  unable  to  provide  for  her. 
When  the  father  is  utterly  unable  to  support  his  children,  the  law 
would  be  inhuman  in  the  extreme  to  cast  them  upon  the  charity  of 
strangers  for  support,  while  their  own  property  is  adequate  for 
their  maintenance.  But  such  provision  does  not  depend  upon  the 
father's  insolvency  only,  but  it  is  made  whenever  he  is  unable  to 
give  the  child  an  education  suited  to  the  fortune  which  she  enjoys  or 
expects.  Buckworth  v.  Buckworth,  i  Cox,  80,  cited  in  McPh.  on  Inf. 
320.     It  is  said  the  father's  ability  is  to  be  estimated  comparatively. 


EARNINGS   AND    EMANCIPATION   OF   THE   CHILD.  341 

The  amount  of  his  income,  the  size  of  his  family  dependent  on  him 
for  support,  and  we  might  add,  his  physical  inability  from  disease, 
etc.,  to  exert  himself  in  providing  for  them,  should  be  taken  into 
the  estimate;  and  if,  in  view  of  the  circumstances,  it  should  appear 
to  be  reasonable  to  make  an  allowance,  and  for  the  benefit  of  the 
infant,  the  court  should  order  it.  And  to  this  end,  it  is  proper  that 
the  question  of  the  ability  of  the  father,  the  amount  of  the  ward's 
income,  and  the  sum  required  for  her  support  and  education,  should 
be  referred  to  the  master,  if  the  chancellor  is  in  doubt  upon  these 
questions,  so  that  the  proper  allov/ance  can  be  made. 

We  do  not  think  there  is  any  valid  objection  on  the  score  of 
parties.  The  father  is  a  party  interested  in  being  provided  as  the 
guardian  by  nature  and  nurture,  with  the  means  of  supporting  and 
educating  his  child,  and  is  certainly  the  proper  person  to  superintend 
her  education,  unless  there  be  objections  to  him,  and  none  are  pre- 
tended to  exist  in  the  present  case.  The  trustee  who  holds  the 
property  represents  the  ward  in  respect  to  that.  It  is  not  indispen- 
sable that  the  child  should  be  made  a  party.  The  court  will  see  to 
it  that  her  interest  is  not  prejudiced.  We  find  a  similar  application 
was  heard  at  the  suit  of  the  mother,  and  a  liberal  allowance  made, 
in  South  Carolina  [Mrs.  Heyward  v.  Cuthbert,  Ex' r  of  Heyward,  4 
Des.  Eq.  R.  445),  and  the  principle  seems  to  be  sanctioned  by 
several  authorities  in  the  brief  of  counsel. 

Let  the  decree  be  reversed  and  the  cause  remanded. 


Earnings  ajid  Emancipation  of  the  Child. 

BISHOP   V.    SHEPHERD. 

23  Pick  (Mass.),  492. —  1839, 

Assumpsit  for  the  services  of  Robert  Bishop,  the  plaintiff's  minor 
son,  on  board  the  whale  ship  Ann  Alexander,  of  New  Bedford,  of 
which  the  defendant  was  master. 

At  the  trial,  before  Putnam,  J.,  it  appeared  that  the  minor,  being 
in  the  plaintiff's  service,  and  living  with  him,  was  without  his  con- 
sent or  knowledge,  received  on  board  the  ship;  that  the  son  signed 
the  shipping  articles;  that  the  defendant  knew  that  he  was  under 
twenty-one  years  of  age,  but  was  probably  deceived  by  a  false  repre- 
sentation that  he  had  his  father's  nsent  to  his  shipment;  that  he 
performed  his  duty  as  one  of  the  crew,  for  more  than  three  years; 
that  he  left  the  ship  at  Talcahuana,  on  her  return  voyage;  and  that 


342  PARENT   AND    CHILD. 

there  was  a  balance  due  to  him,  provided  his  leaving  the  shiji  did  not 
amount  to  a  forfeiture  thereof. 

The  jury  found  that  the  minor  deserted  the  ship  at  Talcaliuana 
without  intending  to  return,  and  that  he  was  not  justified  in  so  doing 
by  any  ill-usage  or  danger  of  life  or  limb.  This  was  received  by  the 
judge  as  a  verdict  for  the  defendant. 

Th^  plaintiff  moved  the  court  that  the  verdict  should  be  set  aside 
and  a  new  trial  granted. 

SH.A.W,  C.  J.  This  is  an  action  brought  by  the  plaintiff  to  recover 
the  wages  or  earnings  of  his  minor  son,  for  services  on  board  of  a 
whale  ship.  It  was  found  by  the  jury,  that  the  son  deserted  in  the 
course  of  the  voyage,  without  any  excuse  or  justification,  on  the 
ground  of  cruel  treatment.  By  the  shipping  articles,  such  a  deser- 
tion is  declared  to  be  a  cause  of  forfeiture,  and  if  the  son  were  acting 
sua  jure  under  and  by  force  of  the  contract,  it  is  alleged  that  his 
share  would  be  forfeited,  and  that  the  father  is  bound  by  the  same 
forfeiture;  or,  by  the  general  rule  of  the  maritime  law,  which  de- 
clares that  all  claims  for  wages  are  forfeited  by  desertion. 

But  we  think  it  hardly  necessary  to  inquire  what  would  be  the 
rights,  either  of  the  seaman  himself  or  of  the  father,  were  either  of 
them  claiming  upon  the  express  contract.  In  the  late  case  of  Vent 
V.  Osgood^  19  Pick.  572,  in  Essex,  it  was  held,  that  such  a  contract 
by  a  minor  was  voidable,  that  he  might  avoid  it  during  the  voyage 
by  quitting  the  ship,  that  being  rendered  void  ah  initio^  but  he  was 
not  bound  by  the  clause  of  forfeiture,  and  might  recover  a  quantum 
meruit  for  his  actual  services.  But  the  plaintiff  claims  a  reasonable 
compensation,  on  the  ground  that  he  is  entitled  to  the  earnings  and 
services  of  his  son,  the  value  of  which  he  is  entitled  to  recover  as 
upon  an  implied  contract;  and  the  question  is,  if  he  has  such  remedy, 
whether  it  is  against  the  master  or  the  owners.  He  is  not  to  be 
affected  by  the  shipping  pajier,  because  it  is  an  express  contact, 
which,  as  against  him  and  his  rights,  the  son  had  no  authority  to 
make.  The  action  of  the  father  can  only  be  maintained,  as  upon  an 
implied  contract,  founded  upon  the  equitable  consideration  that  the 
father  was  entitled  to  the  earnings  and  services  of  his  son,  that  the 
defendant  received  those  earnings,  and  had  those  services,  and  is 
bound  to  account  therefor  to  the  plaintiff,  and  for  this  duty  the  law 
raises  an  implied  promise.  That  the  plaintiff  was  entitled  to  the  earn- 
ings of  his  son,  sufficiently  appears  by  the  facts,  that  the  son  was  a 
minor  under  his  tutelage,  and  in  his  employment,  and  engaged  in  this 
voyage  without  his  consent.  As  he  disaffirms  the  son's  contract,  and 
claims  the  value  of  the  services,  as  a  debt  due  directly  to  himself,  he 


EARNINGS   AND    EMANCIPATION   OF   THE    CHILD.  343 

is  not  bound  by  its  terms,  nor  affected  by  its  conditions.  *  *  * 
This  decision  goes  on  the  ground,  that  the  father  disaffirms  the  express 
contract,  and  sues  on  an  implied  promise  to  pay  what  he  is  equitably 
entitled  to  have,  and  that  as  the  owners  held  the  proceeds  of  the  son's 
earnings,  they,  and  not  the  master,  must  be  responsible,  on  an  implied 
promise  to  the  father.' 


CLOUD  V.   HAMILTON. 

II  Humph.  (Tenn.)  104. — 1850. 

This  action  of  assumpsit  was  brought  in  the  Circuit  Court  of  Meigs 
county;  it  was  submitted  to  a  jury  on  the  plea  of  non-assumpsit  under 
the  direction  of  Judge  Keith,  and  a  verdict  and  judgment  rendered 
for  the  defendant. 

The  plaintiff  appealed. 

ToTTEN,  J.  The  action  is  assumpsit  on  the  common  counts  for 
labor  and  services;  and  the  case  is,  that  the  plaintiff's  son  William,  at 
about  the  age  of  seventeen  years,  went  into  the  service  of  Robert  W. 
Hamilton,  a  tanner,  with  a  parol  understanding  between  him  and 
William,  that  William  should  reside  with  him  for  some  three  years, 
and  learn  the  business  and  art  of  tanning.  William  went,  at  first, 
without  his  father's  consent,  but  the  proof  shows  that  he  afterwards 
consented  to  William's  continuing  in  Hamilton's  service,  upon  their 
own  agreement,  but  declined  to  become  a  party  to  any  contract  be- 
tween William  and  Hamilton,  or  to  have  any  interest  in  it.  William 
remained  with  Hamilton  about  a  year  and  a  half,  principally  engaged 
in  the  tanyard,  when  he  quit  Hamilton's  service,  on  some  disagree- 
ment between  them,  and  thereon  the  plaintiff  instituted  this  suit  to 
recover  for  his  son's  labor  and  services.  The  court  charged,  in 
effect,  that  the  plaintiff  might  recover  for  the  labor  and  service  of  his 
son,  if  he  went  and  continued  in  defendant's  employment  without  the 
consent  of  the  plaintiff,  but  could  not  recover  if  he  consented  that  his 

'  "  The  clear  presumption  is  that  the  father  is  entitled  to  the  earnings  of  his  son 
until  the  latter  arrives  at  the  age  of  twenty-one  years  ;  and  if  he  continues 
thereafter  to  remain  with  his  father  as  a  member  of  his  family,  the  presumption 
is,  that  his  labor  is  gratuitous.  He  may,  however,  show  the  contrary.  The 
ground  of  such  presumption  is,  that  the  son  received  from  the  father  parental 
support,  protection,  education,  clothing,  and  like  suitable  provisions,  and  his 
labor  is,  hence,  due  and  belongs  to  the  father,  unless  the  contrary  be  shown. 
Podson  V.  McAdams,  96  N.  C.  149  ;  Young  v.  Hernun,  97  Id.  2S0,  and  the 
authorities  cited  in  these  cases  ;  Winchester  v.  Reid,  8  Jones,  377."  —  Merrimon, 
C.  J.,  in  Grant  v.  Grant,  109  N.  C.  710,  713. 


344  PARENT   AND   CHILD. 

son  might  act  in  that  matter  upon  his  own  agreement,  and  for  his  own 
benefit.  It  is  unquestionably  true,  that  the  father  being  under  obli- 
gation to  maintain,  and  in  some  degree,  to  educate  his  infant  chil- 
dren, is  entitled  to  the  custody  of  their  persons  and  to  the  value  of 
their  labor  and  services.  If  the  infant  do  labor  and  service  for 
another, without  the  father's  consent,  such  person  will  be  liable  there- 
for, at  the  suit  of  the  father.  But  the  father  may  waive  this  right  for 
the  benefit  of  his  child,  and  permit  him  to  act  for  himself,  upon  his 
own  rights  and  responsibilities  and  for  his  own  benefit,  and  this 
waiver  may  appear  by  express  agreement,  or  be  implied  from  facts 
and  circumstances.  If  he  waive  his  rights,  and  permit  his  son  to 
make  contracts  and  acquisitions  for  himself,  they  are  his  contracts 
and  acquisitions,  and  not  the  father's.  See  Burlinganie  v.  Burlingame, 
7  Cowen  Rep.  92,  McCoy  \.  Huffman^  8  Cowen  Rep.  84;  Shute  v.  Door, 
5  Wend.  Rep.  204,  2  Kent  Com.  194,  note. 

The  question  whether  the  plaintiff  had  thus  waived  his  rights  was 
fairly  left  to  the  jury,  and  we  think  that  they  have  decided  it  cor- 
rectly. 

The  plaintiff  having  waived  his  right  in  this  respect,  it  is  not  mate- 
rial to  determine  the  legal  effect  of  the  agreement  entered  into  by  his 
son  with  defendant's  intestate. 

We  do  not  think,  in  view  of  the  facts  of  this  case,  that  the  plaintiff 
has  any  cause  of  action  against  the  defendant. 

Let  the  judgment  be  affirmed.' 


COMMONWEALTH  v.  GRAHAM. 

157  Mass.  73. —  1892. 

Field,  C.  J.  *  *  *  The  real  question  is  whether,  when  a 
minor  son  marries  without  the  consent  of  his  father,  and  the  father 
never  consents  to  it,  and  needs  the  son's  wages  for  his  support  and  the 
support  of  his  family,  the  father  is  entitled  to  the  son's  wages  during 
minority  in  preference  to  the  wife,  who  also  needs  the  wages  for  her 
support.  The  ruling  was  that  the  "wife  would  be  entitled  to  receive 
support  from"  her  husband,  and  that  he  "would  be  entitled  as  of 
right  to  such  portion  of  his  wages  as  to  enable  him  to  support  his 
wife;  that  the  father  could  only  claim  the  rest." 

It  seems  to  be  settled  that  the  marriage  of  a  minor  son,  with  the 
consent  of  his  father,  works  an  emancipation,  and  it  is  not  clear  that 
the  marriage  of  a  minor  son  without  his  father's  consent  does  not 

'  See,  also.  Clay  v.  Shirley.  23   Atl.   Rep.    521    (N.    H.    Supreme   Court,    1874); 

Niiolaus  V.  Snyder,  56   Neb.  531. 


EARNINGS   AND    EMANCIPATION   OF   THE   CHILD.  345 

have  the  same  effect,  although  the  decision  in  White  v.  Henry,  24 
Maine,  531,  is  contra.  It  has  been  said:  "The  husband  becomes  the 
head  of  a  new  family.  His  new  relations  to  his  wife  and  children 
create  obligations  and  duties  which  require  him  to  be  the  master  of 
himself,  his  time,  his  labor,  earnings  and  conduct."  Sherburfiev. 
Hartland,  37  Vt.  528,  529.  There  seems  to  be  little  doubt  that, 
when  an  infant  daughter  marries,  she  is  emancipated  from  the  control 
of  her  parents.  Aldrich  v.  Bennett,  63  N.  H.  415;  Burr  v.  Wilson,  18 
Tex.  367;  Porch  v.  Fries,  3  C.  E.  Green,  204;  JVorthfieldv.  Brookfield, 
50  Vt.  62;  Rex  V.  Wilmington,  5  B.  &  Aid.  525;  Rex  v.  Everton,  i 
East,  526.  See,  ho-w e.w qx,  Babin  v.  La  Blatic,  12  La.  Ann.  367.  The 
meaning  of  emacipation  is  not  that  all  the  disabilities  of  infancy  are 
removed,  but  that  the  infant  is  freed  from  parental  control,  and  has 
a  right  to  his  own  earnings.  In  Taunton  v.  Plymouth,  15  Mass.  203, 
204,  it  was  intimated  that  the  marriage  of  an  infant  son  with  the  con- 
sent of  the  father  entitled  the  son  to  his  own  earnings  for  the  support 
of  his  family,  and  in  Davis  v.  Caldwell,  12  Cush.  512,  it  is  said  that 
an  infant  husband  is  liable  for  necessaries  furnished  for  himself  and 
his  family.  It  is  clear,  we  think,  that  it  is  the  duty  of  an  infant  hus- 
band to  support  his  wife,  and  that,  if  he  have  property  and  a  guar- 
dian, it  is  the  duty  of  the  guardian  to  apply  the  income,  and,  so  far  as  is 
necessary,  the  principal  of  his  ward's  property,  to  the  maintenance  of 
the  ward  and  his  family,  under  the  Pub.  Sts.  c.  139,  sec.  30. 

We  are  of  the  opinion  that  these  considerations  make  it  necessary  to 
hold  that  an  infant  husband  is  entitled  to  his  own  wages,  so  far  as  they 
are  necessary  for  his  own  support  and  that  of  his  wife  and  children, 
even  if  he  married  without  his  father's  consent,  and  that  the  ruling 
of  the  court  was  sufficiently  favorable  to  the  defendant.  Whether 
sound  policy  does  not  require  that,  in  every  case  in  which  the  mar- 
riage is  valid,  an  infant  husband  should  be  entitled  to  all  his  earn- 
ings, need  not  now  be  decided. 

Exceptions  overruled. 


WILSON  V.  McMillan. 

62  Ga.  16. — 1878. 

Bleckley,  J.  The  record  discloses  that  the  daughter  was  a  minor, 
but  does  not  give  her  exact  age.  It  shows  that  the  father  and 
daughter  made  a  contract  in  the  commencement  of  the  year  1876,  by 
which  it  was  agreed  that  she  was  to  receive  for  her  labor  in  the 
crop  of  that  year  all  the  cotton  that  might  be  produced;  tliat  she 
worked  on  the  father's  farm  with   him  and  helped  to  cultivate  it; 


346  PARENT    AND    CHILD. 

that  the  area  phinted  in  corn  was  thirteen  or  fourteen  acres,  and 
that  planted  in  cotton  was  five  acres;  that  two  bales  of  cotton  were 
produced;  that  one  of  these  was  sold  by  him,  the  proceeds  of  which 
he  kept,  and  the  other  was  levied  upon  by  virtue  of  a  judgment  against 
him,  rendered  in  the  previous  year,  that  is,  the  year  1875  !  that  on  the 
faith  of  her  contract  with  her  father,  she  opened  an  account  with  a 
merchant,  and  from  time  to  time,  between  January  and  October,  pur- 
chased supplies  and  merchandise,  some  for  herself  and  some  for  the 
family,  expecting  and  promising  to  make  payment  out  of  the  cotton 
or  its  proceeds;  that  if  the  cotton  should  be  sold  away  from  her  this 
debt  would  be  left  unpaid  and  unprovided  for;  that  the  contract  be- 
tween her  and  her  father  was  brought  about  by  a  threat  on  her  part  to 
leave  him,  as  the  other  children  had  done;  and  that  to  the  bale  of  cot- 
ton levied  upon  as  above  mentioned  she  interposed  her  claim,  which 
claim  was  decided  by  the  presiding  justice  of  the  peace  in  her  favor. 

I.  In  section  1792,  the  Code  declares,  "until  majority,  the  child 
remains  under  the  control  of  the  father,  who  is  entitled  to  his  services 
and  the  proceeds  of  his  labor."  The  same  section  provides  that  this 
parental  power  is  lost,  "  by  his  consent  to  the  child's  receiving  the 
proceeds  of  his  own  labor,  which  consent  shall  be  revocable  at  any 
time."  Other  modes  of  losing  it  are  enumerated,  but  they  are  irrele- 
vant. In  his  excellent  work  on  Master  and  Servant,  sec.  25,  Mr. 
Wood  says:  "  It  seems  that  emancipation  may  be  implied  even  when 
the  minor  resides  at  home  and  works  for  his  father,  from  a  promise  on 
the  part  of  the  father  to  pay  him  for  his  services  during  his  minority, 
so  that  the  minor  may  maintain  an  action  against  the  father  even  for 
such  services."  44N.  H.  293;  12  Mass.  377;  5  Eng.  211.  No  doubt 
the  agreement  would  have  to  be  clearly  established.  64  Pa.  St.  480. 
As  to  the  rights  of  the  father's  creditors,  they  would  seem  to  be  no 
more  absolute  over  the  prospective  labor  of  the  child  than  over  that 
of  the  father  himself.  Certainly  a  debtor  may  work  gratuitously  for 
whom  he  pleases,  and  his  creditor  cannot  oblige  him  to  exact  wages. 
While  a  debtor  cannot  give  away  his  property  to  the  prejudice  of  his 
creditors,  he  may  give  away  his  labor.  So,  too,  may  he  give  away  his 
minor  child's  labor,  either  to  the  child  itself  or  to  another.  A  father 
is  not  bound  to  claim  the  earnings  of  his  child  and  appropriate  them 
to  his  creditors.  3  Casey,  220.  Of  course  he  cannot  take  the  earn- 
ings in  fact  and  cover  them  up  against  the  claim  of  his  creditors  by  a 
mere  colorable  arrangement  with  the  child.  But  it  is  not  apparent 
why  a  bona  fide  hiring  of  the  child  by  him  before  the  labor  is  per- 
formed is  not  as  valid  a  mode  of  waiving  parental  right  as  any  other. 
The  good  faith  of  the  transaction  is  open  to  scrutiny,  and  is  for  deci- 
sion by  the  tribunal  trying  the  fact.     A  reasonable  part  of  the  pros- 


PROPERTY    OF    THE    CHILD.  347 

pective  crop,  in  a  fair  and  honest  contract,  may  be  promised  the  child 
at  the  time  of  the  hiring,  as  compensation;  and  such  part,  when  it 
comes  into  existence,  will  be  the  property  of  the  child,  and  not  liable 
to  seizure  to  satisfy  the  father's  debts.  In  the  present  case,  the 
judgment  was  older  than  the  contract  of  hiring,  but  as  the  hiring  took 
place  before  the  crop  was  planted,  and  therefore  before  the  judgment 
lien  could  attach,  and  as  there  is  no  certainty  that,  but  for  the  contract 
and  the  labor  done  in  pursuance  of  it,  the  cotton  levied  upon  would 
ever  have  been  produced,  we  think  the  date  of  the  judgment  makes 
no  difference.  When  a  laborer  hired  to  plant  and  cultivate  a  crop  is 
to  receive  a  definite  part  of  the  crop  as  wages,  as  all  the  cotton,  or  all 
the  corn,  the  hirer  never  has  any  real,  substantial  ownership  of  such 
part  as  against  the  laborer,  provided  the  contract  of  labor  is  fully  and 
faithfully  performed.  Grant  that  the  father  could  have  defeated  the 
daughter's  right  by  revoking  his  consent  as  given  in  the  contract  of 
hiring,  still  he  did  not,  in  point  of  fact,  revoke  his  consent  as  to  the 
one  bale  levied  upon,  if  he  did  as  to  the  other.  His  creditor  could  not 
revoke  for  him,  and  without  revocation  the  daughter's  would  be  and 
remain  the  superior  right. 

2.  Fraud,  indeed,  would  break  up  the  daughter's  title,  but  the  mag- 
istrate, we  may  assume,  found  no  fraud;  and  the  evidence  is  not  such 
as  to  force  him  to  find  fraud. 

Judgment  affirmed.' 


Property  of  the  Child. 
BANKS  V.  CONANT. 

14  Allen  (Mass.)  497. —  1867. 

Contract  for  money  had  and  received.  The  plaintiff,  who  was 
the  father  of  Joseph  Banks,  sued  the  defendant  to  recover  $125, 
bounty  money,  which  was  due  to  Joseph  for  enlisting  in  the  United 
States  service,  but  which,  unknown  to  Joseph,  had  been  paid  to  the 
defendant,  who  had  assisted  him  to  enlist. 

BiGELOw,  C.  J.     In  consideration  of  the  duty  which  the  law  im- 
poses on  a  father  to  furnish  adequate  support  to  his  child  during  in- 
fancy, the  services  of  the  child  during  that  period  are  due  to  the 
father,  and,  if  they  are  rendered  to  a  third  person,  the  right  of  the 
father  to  recover  the  value  thereof  is  clear  and  indisputable.     But 

'  But  see  Godfrey  v.  Hays,  6  Ala.  501. 


348  PARENT    AND    CHILD, 

this  is  the  extent  of  the  father's  right.  He  has  no  title  to  the  property 
of  the  child,  nor  is  the  capacity  or  right  of  the  latter  to  take  prop- 
erty or  receive  money  by  grant,  gift  or  otherwise,  except  as  a  compen- 
sation for  services,  in  any  degree  qualified  or  limited  during  minority. 
Whatever,  therefore,  an  infant  acquires  which  does  not  come  to  him  as 
a  compensation  for  services  rendered,  belongs  absolutely  to  him,  and 
his  father  cannot  interpose  any  claim  to  it,  either  as  against  the  child, 
or  as  against  third  persons  who  claim  title  or  possession  from  or  under 
the  infant. 

These  familiar  principles  are  decisive  against  the  right  of  the  plain- 
tiff to  maintain  this  action.  The  money  which  the  defendant  received 
was  not  paid  for  any  services  which  the  plaintiff's  minor  son  had  ren- 
dered or  had  agreed  to  render.  His  pay  as  an  enlisted  soldier  was  a 
definite  and  fixed  sum  each  month,  given  and  received  as  an  adequate 
compensation  for  the  time  and  labor  which  it  was  his  duty  to  render  in 
the  military  service  of  the  United  States.  But  the  money  which  is  the 
subject  of  this  action  was  paid  for  a  very  different  purpose.  It  was  a 
bounty  or  gratuity  given  to  the  recruit  for  the  purpose  of  inducing 
him  personally  to  undertake  a  service  of  an  arduous  and  hazardous 
nature,  into  which  his  father  had  no  power  or  authority  to  compel  him 
to  enter,  and  which  the  minor  was  under  no  legal  obligation  to 
assume.  The  consideration  of  the  payment  was  solely  the  assent  of 
the  minor  to  the  agreement  or  contract  of  enlistment  by  which  he  was 
bound  to  render  the  prescribed  service  or  duty.  The  decisive  test  of 
this  is  that  his  right  to  the  bounty  was  complete  and  irrevocable, 
although  he  might  not  have  been  able,  by  reason  of  injury,  illness,  sud- 
den death  or  other  cause,  to  perform  any  duty  to  render  any  substan- 
tial service  under  the  contract  into  which  he  had  been  induced  to 
enter  by  reason  of  the  bounty.  The  money  was  not  paid  as  an  equiva- 
lent for  services,  and,  as  these  are  the  sole  foundation  on  which  the 
claim  of  the  father  rests,  it  necessarily  follows  that  the  latter  shows  no 
title  to  the  money,  in  the  hands  of  the  defendant,  which  is  sought  to 
be  recovered  in  this  action.  It  has  been  held  in  England  that  money 
due  to  apprentices  for  bounties  or  prize  money,  to  which  they  become 
entitled  while  in  the  naval  service,  cannot  be  recovered  by  their  mas- 
ters.    Carson  v.   Watts^  3  Doug.  350;  Eades  v.  Vandeput,  4  Doug.  i. 

Judgment  for  the  defendant.' 

'  That  the  soldier  may  maintain  an  action  for  money  had  and  received  in  such 
case,  see  Sullivan  v.  Fitzgerald,  12  Allen,  482. 


CHASTISEMENT   AND    RESTRAINT   OF   THE    CHILD.  349 

Chastisemertt  and  Restraint  of  the  Child. 

FLETCHER  et  al.  v.  THE  PEOPLE. 
52  III.  395.— 1869. 

Mr.  Justice  Lawrence.  This  was  an  indictment  against  Samuel 
Fletcher  and  his  wife,  Ledicia,  for  false  imprisonment  of  Samuel 
Fletcher,  Jr.,  the  son  of  Samuel,  Sr.,  and  stepson  of  Ledicia.  The 
defendants  were  found  guilty,  and  sentenced  to  pay  a  fine  of  $300  each. 

The  instructions  gave  the  law  correctly  to  the  jury,  and,  so  far  as  re 
lates  to  Samuel  Fletcher,  we  are  of  opinion  the  evidence  sustains  the 
verdict.  It  shows  the  wanton  imprisonment,  without  a  pretense  of 
reasonable  cause,  of  a  blind  and  helpless  boy,  in  a  cold  and  damp  cel- 
lar, without  fire,  during  several  days  of  mid-winter.  The  boy  finally 
escaped  and  seems  to  have  been  taken  in  charge  by  the  town  authori- 
ties. The  only  excuse  given  by  the  father  to  one  of  the  witnesses  who 
remonstrated  with  him  was,  that  the  boy  was  covered  with  vermin, 
and  for  this  the  father  anointed  his  body  with  kerosene.  If  the  boy  was 
in  this  wretched  state,  it  must  have  been  because  he  had  received  no 
care  from  those  who  should  have  given  it.  In  view  of  this  blind  and 
helpless  conditicn  the  case  altogether  is  one  of  shocking  inhumanity. 

Counsel  urge  that  the  law  gives  parents  a  large  discretion  in  the  ex- 
ercise of  authority  over  their  children.  This  is  true,  but  this  au- 
thority must  be  exercised  within  the  bounds  of  reason  and  humanity. 
If  the  parent  commits  wanton  and  needless  cruelty  upon  his  child, 
either  by  imprisonment  of  this  character  or  by  inhuman  beating,  the 
law  will  punish  him.  Thus,  in  J^ohnson  v.  The  State,  2  Humph.  283, 
the  court  held  the  parents  subject  to  indictment,  because,  in  chastis- 
ing their  child,  they  had  exceeded  the  bounds  of  reason,  and  inflicted 
a  barbarous  punishment.  It  would  be  monstrous  to  hold  that  under 
the  pretence  of  sustaining  parental  authority,  children  must  be  left, 
without  the  protection  of  the  law,  at  the  mercy  of  depraved  men  or 
women,  with  liberty  to  inflict  any  species  of  barbarity  short  of  the 
actual  taking  of  life. 

In  this  case,  however,  the  verdict  against  Ledicia  Fletcher  was 
wrong.  There  is  absolutely  no  evidence  whatever  against  her.  As 
to  her,  the  judgment  must  be  reversed.  As  to  Samuel  Fletcher,  it  is 
aflBrmed. 

A  similar  order  of  partial  reversal  in  a  criminal  case  was  entered 
by  this  court  in  Vandermark  v.  The  People,  47  111.  124. 

Reversed  in  part.' 

'  For  a  case  in  which  violent  treatment  was  held  justified,  see  State  v.  Jonet, 
95  N.  C.  588. 


350  parp:nt  and  child. 


McKELVEY  v.  McKELVEY  et  al. 

IT  I  Tenn.  388.  —  1903. 

Beard,  C.  J.  'I'his  is  a  suit  instituted  by  a  minor  child,  by  next 
friend,  against  her  father  and  stepmother,  seeking  to  recover  dam- 
ages for  cruel  and  inhuman  treatment  alleged  to  have  been  inflictec 
upon  her  by  the  latter  at  the  instance  and  with  the  consent  of  the 
father.  Upon  demurrer  the  suit  was  dismissed,  and,  the  case  being 
properly  brought  to  this  court,  error  is  assigned  upon  this  action  of 
the  trial  judge. 

We  think  there  was  no  error  in  this  dismissal.  At  common  iaw 
the  right  of  the  father  to  the  control  and  custody  of  his  infant  child 
grew  out  of  the  corresponding  duty  on  his  part  to  maintain,  protect, 
and  educate  it.  These  rights  could  only  be  forfeited  by  gross  mis- 
conduct on  his  part.  The  right  to  control  involved  the  subordinate 
right  to  restrain  and  inflict  moderate  chastisement  upon  the  child. 
In  case  parental  power  was  abused,  the  child  had  no  civil  remedy 
against  the  father  for  the  personal  injuries  inflicted.  Whatever 
redress  was  afforded  in  such  case  was  to  be  found  in  an  appeal  to  the 
criminal  law  and  in  the  remedy  furnished  by  the  writ  of  habeas  cor- 
pus. So  far  as  we  can  discover,  this  rule  of  the  common  law  has 
never  been  questioned  in  any  of  the  courts  of  this  country,  and  cer- 
tainly no  such  action  as  the  present  has  been  maintained  in  these 
courts.  It  is  true  that  no  less  celebrated  an  authority  than  Judge 
Cooley,  in  the  second  edition  of  his  work  on  Torts,  at  page  171, 
observes  that  "in  principle  there  seems  to  be  no  reason  it  should  not 
be  sustained."  No  case,  however,  is  cited  in  support  of  this  text. 
In  fact,  the  only  case  which  the  diligence  of  counsel  has  been  able  to 
find  in  which  this  particular  question  has  been  discussed  is  that  of 
Hewlett  V.  George,  Exr,  reported  in  68  Miss.  703,  9  South.  885,  13 
L.  R.  A.  682.  It  is  there  said  :  "So  long  as  the  parent  is  under 
obligation  to  care  for,  guide,  and  control,  and  the  child  is  under 
reciprocal  obligation  to  aid  and  comfort  and  obey,  no  such  action  as 
this  can  be  maintained.  The  peace  of  society,  and  of  the  families 
composing  society,  and  of  a  sound  public  policy  designed  to  subserve 
the  repose  of  families  and  the  best  interests  of  society,  forbid  to  the 
minor  child  a  right  to  appear  in  court  in  the  assertion  of  a  claim  to 
civil  redress  for  personal  injuries  suffered  at  the  hands  of  the  parent. 
The  state,  through  its  criminal  laws,  will  give  the  minor  children 
protection  from  parental  violence  and  wrongdoing,  and  this  is  all  the 
child  can  be  heard  to  demand." 


CHASTISEMENT   AND    RESTRAINT   OF   THE   CHILD.  351 

The  fact  that  the  cruel  treatment  in  this  case  was  inflicted  by  a 
stepmother  can  make  no  difference,  for,  whether  inflicted  in  the 
presence  of  the  father  or  not,  if  the  action  could  be  maintained  at 
all,  he  would  be  responsible  for  the  tort.  If  inflicted  in  his  presence, 
he  alone  would  be  responsible,  nothing  appearing  to  repel  the  pre 
sumption  that  it  was  the  result  of  his  coercion ;  if  out  of  his  presence, 
then  he  and  she  would  be  jointly  liable  for  the  wrong.  So  at  last  it 
comes  back  to  the  question  as  to  the  right  of  a  minor  child  to  insti- 
tute a  civil  action  against  the  father  for  wrongs  inflicted  upon  it. 

An  analogy  is  furnished  in  the  relation  of  husband  and  wife.  It 
has  been  held  that  neither  husband  nor  wife  can  maintain  an  action 
against  the  other  for  wrongs  committed  during  coverture.  This 
holding  rests  in  part  upon  their  unity  by  virtue  of  the  marriage  rela- 
tion, which  would  preclude  the  one  from  suing  the  other  at  law,  and 
in  part  upon  the  respective  rights  and  duties  involved  in  that  rela- 
tion. In  Abbott  v.  Abbott^  67  Me.  304,  24  Am.  Rep.  27,  it  was  held 
that  a  wife  could  not,  even  after  being  divorced  from  her  husband, 
maintain  an  action  against  him  for  an  assault  committed  upon  her 
during  coverture,  nor  against  persons  who  assisted  him  in  making 
the  assault.  As  was  said  by  the  court,  at  common  law  the  husband 
was  the  guardian  of  the  wife,  and  was  bound  to  protect  and  maintain 
her,  and  on  that  ground  "  the  law  gave  him  a  reasonable  superiority 
and  control  over  her  person,  authorizing  him  to  put  gentle  restraints 
upon  her  liberty  if  her  conduct  were  such  as  to  require  it."  2  Kent's 
Com.  180.  In  view  of  the  evolution  of  the  law  in  the  amelioration 
of  the  married  woman's  condition  and  the  comparative  independence 
that  was  now  secured  to  her,  it  was  insisted  in  that  case  that  the 
action  should  be  maintained.  To  this,  however,  the  court  replied  : 
"We  are  not  convinced  that  it  is  desirable  to  have  the  law  as  the 
plaintiff  contends  it  to  be.  There  is  no  necessity  for  it.  Practically 
the  married  woman  has  remedy  enough.  She  has  the  privilege  of 
the  writ  of  habeas  corpus  if  unlawfully  restrained.  As  a  last  resort,  if 
need  be,  she  can  prosecute  at  her  husband's  expense  a  suit  for 
divorce." 

In  Phillips  v.  Barneti,  First  Q.  B.  D.  436,  the  same  rule  is  an- 
nounced, although  it  was  insisted  there,  as  in  the  case  from  Maine, 
that,  the  marriage  relation  having  ceased  by  divorce,  the  wife  should 
be  let  in  to  her  action  for  damages  against  the  former  husband  for 
personal  injuries  inflicted  upon  her  during  coveture;  the  argument 
being  that  the  relation  simply  suspended  the  right  of  action,  and, 
this  relation  having  been  terminated,  the  right  was  then  in  a  condi- 
tion to  be  enforced.  But  it  was  there  said,  as  in  the  first  case,  that 
the  error  in  this  insistence  was  in  supposing  that  a  right  of  action 


352  PARENT   AND    CHILD. 

ever  existed;  that  there  was  no  civil   remedy  either  during  or  after 
coverture,  because  there  was  no  civil  right  to  be  redressed. 

We  think  that  the  circuit  judge  acted  in  obedience  to  a  well- 
settled  rule  controlling  the  relation  of  father  and  child,  and  in  fur- 
therance of  a  sound  public  policy,  in  sustaining  the  demurrer  to  the 
declaration  in  this  case,  and  his  judgment  is  affirmed. 


TORTS   BY   THE   CHILD.  353 

Torts  by  the  Child. 
PAUL  V.   HUMMEL. 

43  Mo.  119. —  1868. 

Plaintiff  sued  defendant  for  damages,  in  the  sum  of  two  thou- 
sand dollars,  for  injury  to  her  minor  son,  aged  six  years,  received  at 
the  hands  of  a  minor  son  of  defendant,  aged  eleven  years,  who  was 
residing  with,  and  under  the  charge  and  control  of,  his  father,  the 
said  defendant. 

The  defendant  demurred,  on  the  ground  that  a  father  is  not  re- 
sponsible for  injuries  caused  by  an  assault  made  by  his  minor  child. 

The  demurrer  was  sustained  by  the  court  below. 

Wagner,  J.  In  Baker  v.  Haldeman,  24  Mo.  219,  it  was  decided 
by  this  court  that  a  father  was  not  responsible  for  injuries  caused  by 
an  assault  made  by  his  minor  child.  But  an  attempt  is  made  to  evade 
that  decision,  or  at  least  to  exclude  this  case  from  its  reasoning,  by 
averring  in  the  petition  that  the  child  of  the  defendant,  who  caused 
the  injury,  was  dangerous  to  the  plaintiff  and  her  children,  by  reason 
of  his  vicious  and  destructive  temper  and  of  his  sudden  and  cause- 
less fits  of  anger,  and  that  defendant  had  notice  of  that  fact.  It  is  not 
averred  that  defendant  sanctioned  the  wrong  committed  by  his  minor 
son,  either  before  or  after  the  act.  But  the  petition  was  doubtless 
framed  upon  the  theory  that  an  instruction  given  in  the  trial  court, 
in  Baker's  case,  was  correct  law,  as  that  case  was  not  reversed  on 
error.  The  instruction  was  that,  "unless  the  plaintiff  has  estab- 
lished that  the  boy  was  of  vicious  disposition  and  habits,  and  that 
the  father  knew  it  at  the  time,  he  is  not  responsible  in  damages  for 
the  injury  sustained,  and  the  jury  will  find  for  the  defendant."  The 
verdict  was  for  the  defendant,  and  the  judgment  therein  was 
affirmed;  but  Judge  Leonard,  in  giving  the  opinion  of  the  court 
said  that,  although  the  instruction  given  at  the  instance  of  the  de 
fendant  was  erroneous,  it  was  not  to  the  plaintiff's  prejudice 
and  was  therefore  not  a  matter  for  him  to  complain  of.  It  will  be 
thus  seen  that  the  doctrine  contended  for  derives  no  support  or  au 
thority  from  that  case.  In  Tifft  v.  Ti'fft,  4  Denio,  175,  the  action 
was  brought  to  recover  damages  for  the  killing  of  a  hog,  by  a  dog 
which  was  set  on  by  defendant's  daughter,  but  the  court  held  that 
the  defendant  was  not  answerable  for  the  act  of  his  daughter,  done  in 
his  absence,  and  without  his  authority  or  approval;  but  the  daugh- 
ter, whether  an  infant  or  not,  was  answerable  for  her  own  trespass. 
A  parent  cannot  be  held  liable  for  the  willful  trespasses  and  torts  of 
[Domestic  Relations  —  23.] 


354  PARENT   AND   CHILD. 

his  infant  children,  when  he  neither  assents  to  nor  ratifies  them. 
When  the  minor  has  committed  a  tort,  with  force,  he  is  liable  at  any 
:ige  to  be  proceeded  against  as  an  adult.  Reeves,  Dom.  Rel.  386; 
I  Chit.  PI.  66;  yennings  v.  Randall,  8  T.  R.  335;  Bacon,  Abr.  In- 
fancy, H. ;  Loop  V.  Loop,  i  Verm.  177;  Bullock  v.  Babcock,  3  Wend. 
391.  I  know  of  no  principle  of  law  by  which  the  action  is  maintain- 
able. There  is  no  such  relation  existing  between  father  and  son, 
though  the  son  be  living  with  his  father  as  a  member  of  his  family, 
as  will  make  the  acts  of  the  son  more  binding  upon  the  father  than 
the  acts  of  any  other  person.  The  father  is  not  liable  for  the  con- 
tracts of  the  son,  within  age,  except  they  be  for  necessaries,  and 
it  would  be  a  great  departure  from  the  law  to  hold  him  responsible 
for  the  son's  trespasses  and  wrongs. 

I  think  the  demurrer  was  rightfully  sustained,  and  the  judgment 
will  be  affirmed.     The  other  judges  concur. 


Taylor,  J.,  in  HOVERSON  v.  NOKER. 
60  Wis.  511,  513. —  1884. 

It  will  be  seen  by  an  examination  of  the  record  that  it  became  im- 
portant for  the  plaintiffs  to  connect  the  father  with  the  acts  of  his 
young  sons,  which  the  plaintiffs  allege  caused  the  injury  complained 
of,  and  for  this  purpose  the  plaintiffs  offered  evidence  tending  to 
prove  that  the  sons  had  frequently,  before  the  day  upon  which  the 
accident  happened,  called  abusive  names,  shouted,  and  frequently 
discharged  fire-arms  when  persons  were  passing  the  house  of  the  de- 
fendants, and  that  this  was  often  done  in  the  presence  of  their 
father.  All  evidence  of  this  kind  was  excluded.  This,  we  are  in- 
clined to  hold,  was  error.  If  the  father  permitted  his  young  sons  to 
shout,  use  abusive  language,  and  discharge  fire-arms  at  persons  who 
were  passing  along  the  highway  in  front  of  his  house,  he  permitted 
that  to  be  done  upon  his  premises  which,  in  its  nature,  was  likely  to 
result  in  damage  to  those  passing,  and  when  an  injury  did  happen 
from  that  cause  he  was  not  only  morally  but  legally  responsible  for 
the  damage  done.  If  a  parent  permits  his  very  young  children  to 
become  a  source  of  damage  to  those  who  pass  the  highway  in  front 
of  his  house,  he  is  as  much  liable  for  the  injury  as  though  he  per- 
mitted them  to  erect  some  frightful  or  dangerous  object  near  the 
highway  which  would  frighten  passing  teams;  and  in  such  case  he 
cannot  screen  himself  by  saying  that  he  did  not  in  words  order  the 
erection  to  be  made.     If  he  made  it  himself,  with  the  intention  to 


TORTS   TO   THE   CHILD.  355 

frighten  passing  teams,  he  would  be  responsible  for  the  injury  caused 
by  it;  and  when  he  permits  his  irresponsible  children  to  do  it  he  is 
equally  liable,  because  he  has  the  control  of  his  premises  as  well  as 
of  the  children,  and  is  bound  to  restrain  them  from  causing  a  dan- 
gerous thing  to  be  erected  on  his  premises  near  the  highway;  and 
permitting  his  young  sons  to  become  an  object  of  fright  to  teams 
passing,  is  certainly  equally,  if  not  more  reprehensible  than  permit- 
ting an  inanimate  structure  to  be  placed  where  it  would  cause  such 
.fright.  We  think  the  evidence  ought  to  have  been  admitted  in 
order  to  connect  the  father  with  the  acts  of  the  young  sons  which 
caused  the  injury  when  the  plaintiffs  were  on  their  way  to  church  in 
the  morning,  as  well  as  when  on  their  return  from  the  church  in  the 
afternoon.' 


Torts  to  the  Child. 
PEPPERCORN  V.  THE  CITY  OF  BLACK  RIVER  FALLS. 

89  Wis.  38.— 1894. 

This  action  was  brought  to  recover  damages  for  an  injury  sus- 
tained January  13,  1891,  by  reason  of  a  defective  sidewalk  in  the 
defendant  city,  at  the  place  particularly  described  in  the  complaint, 
which  contained  the  usual  allegations  in  such  cases.  The  answer  is 
by  way  of  admissions  and  denials.  At  the  close  of  the  testimony, 
the  jury  returned  a  general  verdict,  wherein  they  found  for  the 
plaintiff  and  assessed  her  damages  at  $935.50,  and  also  returned 
special  findings  to  the  effect  (i)  that  the  sum  of  $90  will  compensate 
the  plaintiff  for  loss  of  time  from  inability  to  labor  from  the  time  of 
the  alleged  injury  to  the  time  she  became  of  age;  (2)  that  the  sum 
of  $165.50  was  paid  out  or  incurred  in  behalf  of  the  plaintiff  for 
medical  attendance  and  medicines,  from  the  time  of  the  alleged  in- 
jury to  the  time  she  became  of  age. 

Cassoday,  J.  The  trial  court  committed  no  error  in  refusing  to 
allow  the  plaintiff  compensation  for  loss  of  time  during  her  minority 
from  inability  to  labor  by  reason  of  the  injury.  It  does  not  appear 
that  she  was  emancipated,  and  of  course  her  services  during  that 
time  belonged  to  her  father  and  not  to  her.  Nor  did  the  court  com- 
mit any  error  in  refusing  to  allow  her  to  recover  for  moneys  paid 
out  or  incurred  by  her  brother  in  her  behalf  for  medical  attendance 
and  medicines  in  consequence  of  such  injury.  It  may  be  that  the 
physician  so  in  attendance,  and  the  person  so  furnishing  the  medi- 
cines, respectively,  might  have  recovered  therefor  as  for  necessaries, 

'  See  also  Taylor  v.  Seil,  120  Wis.  32;  Johnson   v.  Glidden,  11  S.  Dak.  237. 


:556  PARENT   AND   CHILD. 

but  those  things  gave  her  no  right  of  action  for  moneys  voluntarily- 
paid  and  Habilities  voluntarily  incurred  by  her  brother  or  her  father. 
Taylor  v.  Hill^  86  Wis.  105.'  The  result  is  that  the  plaintiff  can 
take  nothing  by  her  appeal;  and,  in  so  far  as  the  judgment  is  in 
favor  of  the  defendant  in  disallowing  those  two  items,  the  same  is 
affirmed.     *     *     * 


Torts  to  the  Parent  in  the  Filial  Relation. 

HORGAN  V.   PACIFIC  MILLS. 

158  Mass.  402. —  1893. 

Tort  for  damages  for  the  loss  of  service  of  the  plaintiff's  daugh- 
ter, a  minor,  and  for  labor  performed  and  expenses  incurred  in  the 
care  and  cure  of  her  daughter  in  consequence  of  injuries  received  by 
her  through  the  negligence  of  the  defendant.  The  writ  was  dated 
March  23,  1886. 

An  action  against  the  same  defendant  had  previously  been  brought 
by  the  daughter  for  damages  for  the  injuries  received  by  her,  and 
that  action  had  been  settled  by  the  parties  on  October  26,  1885. 
The  defendant  appealed  to  this  court. 

Field,  C.  J.  The  plaintiff's  daughter  when  injured  was  eleven 
years  old,  and  it  appears  that  she,  with  her  sisters,  one  older  and 
two  younger  than  herself,  lived  with  their  mother,  who  was  a  widow, 
as  members  of  one  family,  and  that  the  children  were  dependent  for 
support  on  the  mother,  and  rendered  some  service  to  her  "  in  work 
about  the  house  and  in  tending  a  small  shop  which  was  the  front  room 
of  the  tenement  in  which  they  lived."  In  consequence  of  the  injury 
the  plaintiff  suffered  loss  of  her  daughter's  services,  and  was  put  to 
expense  in  providing  medical  attendance  for  her,  and  to  labor  and 
trouble  in  nursing  and  taking  care  of  her.  The  auditor's  report 
has  been  made  an  agreed  statement  of  facts,  and  the  exact  finding 
of  the  auditor  on  the  question  of  damages  is  as  follows:  "  By  reason 
of  her  daughter's  injuries  the  plaintiff  incurred  an  expense  of  $10 
for  help  in  work  about  the  house  while  the  plaintiff  was  taking  care 
of  her  daughter,  and  rendered  personal  service  in  nursing  and  caring 
for  her  daughter  which  was  fairly  worth  $50,  and  paid  for  medical 
attendance  and  treatment  of  her  daughter  on  account  of  said  inju- 
ries $36,  and  for  expenses  properly  incurred  in  going  to  the  Massa- 
chusetts General  Hospital  the  sum  of  $11.25,  ^i^d  for  prescriptions, 
medicines,  etc.,  the  sum  of  $20,  and  by  reason  of  snid  injury  the 
value  of  her  daughter's  services  to  her  was  diminished  $100;  and  I 

'  Contra,  Denver  &'  R.  G.  R.  R.  v.  Lorentzen,  79  Fed.  2gi;  Brosnan  v.  Sweetser, 
127  Ind.  I. 


TORTS   TO   THE   PARENT   IN   THE   FILIAL   RELATION.        357 

find  that  all  said  expenses  were  properly  incurred  by  the  plaintiff, 
who  was  without  means  of  support  other  than  her  own  exertions, 
without  any  agreement  between  her  and  her  daughter  for  repayment 
thereof,  unless  such  agreement  is  to  be  implied  by  law  from  the 
facts  herein  reported.  And  that  the  daughter  at  the  time  said  ex- 
penses were  incurred  had  no  property  or  thing  of  value,  excepting  a 
claim  against  this  defendant  for  damages  suffered  by  reason  of  their 
said  negligence,  and  that  this  claim  was  not  settled  or  paid  until 
October  26,  1885,  which  was  after  all  said  expenses  were  incurred, 
so  that  at  the  time  said  expenses  were  incurred  the  daughter  was 
actually  dependent  upon  the  plaintiff  for  support  and  care."  These 
sums  amount  to  $227.25,  which  the  auditor  found  the  plaintiff  was 
entitled  to  recover,  unless  the  value  of  the  loss  of  services  occurring 
after  the  date  of  the  settlement  of  the  daughter's  suit  should  be  de- 
ducted, which  is  estimated  at  $25. 

It  appears  that  the  daughter  brought  suit  against  this  defendant 
for  the  injury,  and  that  the  suit  was  settled  by  the  payment  of 
$2,800,  which  the  plaintiff  in  the  present  action  received,  as  guar- 
dian of  her  daughter,  having  been  appointed  guardian  on  September 
21,  1885.  It  is  agreed  that  in  this  suit  by  the  daughter  no  claim 
was  made  for  expenses  or  loss  of  services. 

The  tendency  of  modern  decisions  is  to  give  to  a  widow  left  with 
minor  children,  who  keeps  the  family  together  and  supports  herself 
and  them,  with  the  aid  of  their  services,  very  much  the  same  con- 
trol over  them  and  their  earnings  during  their  minority,  and  to  im- 
pose on  her  to  the  extent  of  her  ability  much  the  same  civil  respon- 
sibility for  their  education  and  maintenance  as  are  given  to  and 
imposed  on  a  father.  We  are  of  opinion  that  when  a  minor  child 
lives  with  its  mother,  who  is  a  widow,  and  the  child  is  supported  by 
the  mother,  and  works  for  her  as  one  of  the  family,  the  mother  is 
entitled  to  recover  for  the  loss  of  services  of  the  child,  and  for  labor 
performed  and  expenses  reasonably  incurred  in  the  care  and  cure  of 
the  child,  so  far  as  they  are  the  consequences  of  an  injury  to  the 
child  negligently  caused  by  the  defendant.  Dedham  v.  Natick, 
16  Mass.  135;  Hammond  v.  Corbett,  50  N.  H.  501;  Matthewson  v. 
Perry,  37  Conn.  435.  See  Diimainv.  Gwynne,  10  Allen,  270;  Camer- 
lin  v.  Palmer  Co.  10  Allen,  539;  Baldwin  v.  Foster,  138  Mass.  449; 
Gleason  v.  Boston,  144  Mass.  25;  Connell  v.  Piitman,  58  N.  H.  534; 
Whitakerw.  Warren,  60  N.  H.  20;  County  Commissioners  \ .  Hamilton^ 
60 'Md.  340;  Natchez,  yackson  &=  Columbus  Railroad  v .  Coo/i,  63  Miss. 
38.  Of  course  there  should  not  be  a  double  recovery,  but  if  the  ex- 
penses are  not  incurred  on  the  credit  of  the  child,  but  on  that  of  the 
mother,  and  if  the  child,   while  living  with  the   mother,  is  not  en- 


358  PAKENr    AND    CHILD. 

titled  to  its  own  earnings,  so  that  the  loss  of  service  is  not  the 
child's  loss  but  the  mother's,  these  items  of  damage  should  not 
be  included  in  the  damagtis  recovered  by  the  child,  but  in  those 
recovered  by  the  mother.  See  M'CartJiy  v.  Guild,  12  Met.  291; 
Dennis  v.  Clark,  2  Cush.  347;  IVilton  v.  Middlesex  Railroad,  125 
Mass.  130.  In  the  case  of  a  girl  eleven  years  old,  whose  father 
is  dead  and  whose  mother  remains  a  widow,  and  who  has  no  property 
and  no  guardian,  it  is  wise  policy  to  give  the  control  of  her  to  her 
mother,  and  to  impose  on  the  mother  the  ordinary  rights  and  duties 
of  a  parent,  unless  it  has  been  determined  otherwise  by  some  tribunal 
having  jurisdiction  over  the  relation  of  parent  and  child. 

The  finding  of  the  court  seems  to  be  for  the  sum  found  by  the  audi- 
tor, with  interest  from  the  date  of  the  writ.  This,  we  think,  is  cor- 
rect. It  does  not  appear  from  the  papers  that  judgment  has  been 
entered  on  this  finding,  but  we  assume  that  this  has  been  done,  as 
the  defendant  appeals.     The  entry  should  be. 

Judgment  on  the  finding  affirmed. 


^  MULVEHALL  v.  MILLWARD. 

II  N.  Y.  343.— 1854. 

The  action  was  to  recover  damages  for  the  seduction  of  the  plain- 
tiff's daughter  by  the  defendant. 

Edwards,  J.  It  was  proved  upon  the  trial  that  the  plaintiff's 
daughter,  at  the  time  of  her  seduction,  was  in  the  defendant's  ser- 
vice, and  it  did  not  appear  that  there  was  animus  revertendi,  or  that 
she,  in  fact,  returned  to  her  father's  house  until  after  her  confine- 
ment. Ui>on  this  state  of  facts  it  was  contended  u[)on  the  part  of 
the  defendant  that,  as  no  expense  or  actual  loss  of  service  on  the 
part  of  the  plaintiff  was  proved,  he  should  be  nonsuited,  and  a  mo- 
tion was  made  to  that  effect,  which  was  overruled. 

In  the  case  of  Dean  v.  Peel,  5  East,  45,  the  plaintiff's  daughter,  at 
the  time  of  her  seduction,  v/as  under  age,  but  was  living  v\  the  fam- 
ily of  another  person,  in  the  capacity  of  a  housekeeper,  with  no  inten- 
tion at  the  time  of  her  seduction  of  returning  to  her  father's  house, 
although  she  did  return  there  while  she  was  under  age,  in  conse- 
quence of  her  seduction,  and  was  maintained  by  her  father.  Upon 
this  state  of  facts  it  was  held,  that,  as  the  daughter  was  actually  in 
the  service  of  another  person  than  her  father,  and  as  there  was  no 
animus  revertendi,  the  action  could  not  be  maintained.  The  rule 
thus  laid  down  has  been  since  followed  in  the  English  courts.     Blay- 


TORTS    TO    THE    PAREiNT    IN    THE    FILIAL    kELAIlUN.        359 

mire  v.  Hale)\  6  Mees.  &  W.  55;  Harris  v.  Butler,  2  Id.  539;  Grinnell 
V.  Wells,  7  Man.  &  Gran.  1033.  In  a  few  years  after  the  decision 
in  Dean  v.  Peel,  a  somewhat  similar  case  arose  in  this  state,  in  which 
it  appeared  that  the  plaintiff's  daughter,  who  was  under  age,  with 
the  consent  of  her  father,  went  to  live  with  her  uncle,  for  whom  she 
worked  when  she  pleased,  and  he  agreed  to  pay  her  for  her  work; 
but  there  was  no  agreement  that  she  should  continue  to  live  in  his 
house  for  any  fixed  time.  While  in  her  uncle's  house  she  was 
seduced,  and  got  with  child.  Immediately  afterwards  she  returned 
to  her  father's  house,  where  she  was  maintained,  and  the  expense 
of  her  lying  in  was  paid  by  him.  Upon  this  state  of  facts  it  was 
held,  contrary  to  the  case  above  cited,  that  the  action  could  be 
maintained.  In  delivering  the  opinion  of  the  court,  Ch.  J.  Spencer 
said:  "  The  case  of  Deanw.  Peel  is,  against  the  action.  In  the  pres- 
ent case  the  father  has  made  no  contract  binding  out  his  daughter, 
and  the  relation  of  master  and  servant  did  exist  from  the  legal  con- 
trol he  had  over  her  services;  and  although  she  had  no  intention  of 
returning,  that  did  not  terminate  the  relation,  because  her  volition 
could  not  affect  his  rights.  She  was  his  servant  de  jure,  though  not 
de  facto,  at  the  time  of  the  injury;  and  being  his  servant  de  jure, 
the  defendant  has  done  an  act  which  has  deprived  the  father  of  the 
daughter's  services,  and  which  he  might  have  exacted,  but  for  that 
injury."  Martin  v.  Payne,  9  Johns.  387.  This  decision  was  after- 
wards approved  of  in  Nickleson  v.  Stryker,  10  Johns.  115.  In  the 
case  of  Clark  v.  Fitch,  2  Wend.  459,  it  was  proved  upon  the  trial 
that  the  plaintiff  told  his  daughter  that  she  might  remain  at  home, 
or  go  out  to  service,  as  she  pleased,  but,  if  she  left  his  house,  she 
must  take  care  of  herself,  and  he  relinquished  all  claim  to  her  wages 
and  services.  It  was  contended  that  there  was  a  distinction  be- 
tween this  case  and  that  of  Martin  v.  Payne,  on  the  ground:  i, 
That  the  father  had  given  his  daughter  her  time  absolutely;  2, 
That  he  had,  in  fact,  incurred  no  expense;  but  it  was  held  that  this 
made  no  difference,  and  that  the  personal  rights  of  the  father  over 
the  child  were  not  relinquished.  In  the  recent  case  of  Bartley  v. 
Richtmeyer  (4  Coms.  38),  Bronson,  Ch.  J.,  in  giving  the  opinion  of 
the  court,  says,  that  "  our  cases  hold  that  the  relation  of  master  and 
servant  may  exist  for  the  purposes  of  this  action,  although  the 
daughter  was  in  the  service  of  a  third  person  at  the  time  of  her 
seduction,  provided  the  case  be  such  that  the  father  then  had  a  legal 
right  to  her  services,  and  might  have  commanded  them  at  pleasure." 
But  it  was  there  held  that  the  stepfather  had  no  such  right,  and  con- 
sequently could  not  maintain  the  action.  In  Pennsylvania  a  similar 
rule  has  been  adopted.     Hornketh  v.   Parr,  8  Serg.  &  R.  36;  6  Id. 


360  PARENT   AND   CHILD. 

177.  See,  also,  Mercer  v.  IVa/msley,  5  Har.  &  John.  27.  And 
Greenleaf,  in  his  treatise  on  Evidence,  lays  it  down  as  the  estab- 
lished American  rule.  2  Greenl.  Ev.  sec.  576.  Whether  it  be 
more  or  less  consistent  with  principle  and  policy  than  the  English 
rule,  it  is  now  too  late  to  inquire.  It  is  too  well  established  by  au- 
thority. The  case  of  Daiji  v.  Wycoff,  3  Selden,  191,  was  cited  on 
the  part  of  the  defendant;  but  it  will  be  seen,  by  reference  to  the 
opinion  delivered  in  that  case,  that  it  was  decided  upon  the  very 
distinction  which  has  been  laid  down  in  the  adjudications  referred 
to.  In  that  case  the  plaintiff's  daughter  was  bound  out  to  service 
to  another,  and  the  plaintiff  had  no  right  to  her  services. 

The  judgment  should  be  affirmed. 

All  the  judges,  except  Ruggles,  who  did  not  hear  the  argument 
and  took  no  part  in  the  decision,  concurred. 

Judgment  affirmed. 


Legitimacy. 
HEMMENWAY  v.  TOWNER  &  WIFE. 

I  Allen  (Mass.)  209. —  1861. 

Petition  for  partition.  At  the  hearing  in  this  court  it  appeared 
that  the  land  in  question  was  devised  to  the  heirs-at-law  of  William 
Hemmenway;  and  the  principal  question  in  issue  was,  whether  the 
petitioner  was  his  son.  Certain  evidence,  which  is  stated  in  the 
opinion,  was  offered  to  prove  the  illegitimacy  of  the  petitioner,  and 
rejected  by  Merrick,  J.,  and  the  respondents  alleged  exceptions. 

Metcalf,  J.  William  Hemmenway  and  the  mother  of  the  peti- 
tioner were  lawful  husband  and  wife,  and  lived  together,  as  such, 
until  within  six  months  next  before  the  petitioner's  birth,  to  wit, 
until  April,  1834,  when  the  mother  deserted  her  husband,  and  has 
since  cohabited  with  James  Grover,  who  brought  up  and  supported 
the  petitioner  till  he  was  fifteen  years  old. 

At  the  trial,  the  respondents  attempted  to  show  that  the  petitioner 
is  not  the  legitimate  child  of  William  Hemmenway,  by  proof,  in 
addition  to  the  facts  above  stated,  of  the  declarations  of  the  said 
Hemmenway,  the  declarations  of  the  said  Grover,  and  the  fact  that 
the  brothers  and  sisters  and  other  relations  of  the  said  Hemmen- 
way never  recognized  the  petitioner  as  his  heir.  The  judge  refused 
to  receive  testimony  as  to  either  of  these  suggested  facts;  and  in 
our  opinion  neither  of  them,  nor  all  of  them  combined,  could  legally 
be  proved  for  the  purpose  for  which  evidence  thereof  was  offered. 


LEGITIMACY.  361 

It  is  established  law  that  every  child  born  in  wedlock,  when  the 
husband  is  not  shown  to  be  impotent,  is  presumed  to  be  legitimate, 
even  though  the  parties  are  living  apart  by  mutual  consent;  that 
this  presumption  (as  held  in  modern  times)  may  be  rebutted  by 
proof  that  the  husband  had  no  access  to  his  wife  during  the  time 
when,  according  to  the  course  of  nature,  he  could  be  the  father  of 
the  child;  but  that  the  presumption  cannot  be  rebutted  by  proof  of 
the  wife's  adultery  while  cohabiting  with  her  husband  — the  law  not 
allowing  the  admission  of  evidence  on  the  question,  whether  the 
adulterer  or  the  husband  is  most  likely  to  be  the  father  of  the  child. 
The  decisions  on  this  subject  are  cited  in  i  Greenl.  Ev.  sec.  28; 
Garde  on  Ev.  25;  Best  on  Ev.  sees.  303,  330;  2  Selw.  N.  P.  (nth 
ed.)  758  et  seq.\  Rogers  on  Ecclesiastical  Law  (2d  ed.),  88-98; 
2  Kent's  Com.  (loth  ed.)  236,  237.  See,  also,  2  Pothier  on  Obliga- 
tions (Evans'  ed.),  341-355,  and  i  Erskine's  Institutes  (ed.  of 
1824),  153,  154. 

Exceptions  overruled.' 


Atkinson,  J.,  in  HICKS  v.  SMITH. 

94  Ga.  809,  812. —  1894. 

We  will  first  consider  what  the  real  status  of  this  natural  son  is. 
At  common  law  the  rights  of  a  bastard  were  few,  and  they  such  only 
as  he  could  acquire.  Having  no  inheritable  blood,  by  operation  of 
the  law  of  descent,  no  estate  could  be  imposed  upon  him.  For  in 
order  to  take  by  descent  he  must  be  capable  of  inheriting,  and  this 
he  could  not  do  because  he  was  not  and  could  not  be  an  heir.  Hav- 
ing the  capacity  to  labor,  there  was  no  legal  impediment  to  the 
acquirement  of  an  estate  by  him.  Being  without  inheritable  blood, 
he  was  of  kin  to  no  one,  could  have  no  ancestor,  could  be  heir  to  no 
one,  and,  for  the  same  reason,  he  could  have  no  heirs  save  those  of 
his  own  body.     In  process  of  time,  however,  the  rigor  of  the  com- 

'  "  A  child  born  of  a  married  woman  is,  in  tiie  first  instance,  presumed  to  be 
legitimate.  The  presumption  thus  established  by  law  is  not  to  be  rebutted  by 
circumstances  which  only  create  doubt  and  suspicion  ;  but  it  may  be  wholly  re- 
moved by  proper  and  sufficient  evidence,  showing  that  the  husband  was : 
I.  Incompetent.  2.  Entirely  absent,  so  as  to  have  no  intercourse  or  communica- 
tion of  any  kind  with  the  mother.  3.  Entirely  absent,  at  the  period  during 
which  the  child  must,  in  the  course  of  nature,  have  been  begotten.  Or,  4.  Only 
present,  under  such  circumstances  as  afford  clear  and  satisfactory  proof  that 
there  was  no  sexual  intercourse.  Such  evidence  as  this  puts  an  end  to  the  ques- 
tion, and  establishes  the  illegitimacy  of  the  child  of  a  married  woman."  —  Mar- 
grave V.  Hari^rave,  9  Beaven  (Eng.  Ch.),  552,  555. 


362  PARENT   AND   CHILD. 

ni:)n  law  has  been  in  most  countries  where  its  rules  prevail  much 
iib.»ied,  and  its  asperities  so  softened  and  tempered  by  humane  leg- 
islative enactment,  that  bastards  have  many  rights  and  are  now 
accorded  many  privileges  which,  under  the  common  law,  were 
denied  them.  To  this  spirit  of  liberality,  which  at  the  present 
time  seems  to  pervade  the  whole  scheme  of  legislation  with  respect 
to  these  unfortunates  who  are  in  no  sense  responsible  for  their  exist 
ence,  may  be  attributed  the  statutes  which  are  now  of  force  in  this 
state  and  by  which  the  condition  of  the  bastard  is  vastly  improved. 

The  general  assembly  early  saw  the  propriety  of  allowing  a  bas 
tard  to  inherit  from  its  mother,  and  bastard  children  of  the  same 
mother,  without  reference  to  their  paternity,  to  inherit  each  from 
the  other.  The  law  of  escheats  forfeited  to  the  state  the  estates  of 
such  persons  who,  dying  intestate,  left  no  heirs.  It  was  held  by 
some  of  the  courts,  that  for  want  of  inheritable  blood  in  her  descend- 
ants the  bastard  children  of  a  mother  dying  intestate  were  incapable 
of  taking  her  estate,  and  by  force  of  the  statute  the  same  was 
forfeited  to  the  state  to  the  exclusion  of  those  who  upon  the  common- 
est principles  of  humanity,  should  and  would  have  been  the  recipi- 
ents of  her  bounty.  For  remedy  of  this  palpable  injustice,  in  1816, 
the  legislature  passed  an  act  the  provisions  of  which  are  contained 
in  section  1800  of  the  Code,  and  which  relieves  bastards  of  some  of 
the  disabilities  imposed  by  the  common  law.  So  the  act  of  1850  was 
passed  to  allow  bastard  children  of  widows  to  inherit  equally  with 
those  who  were  legitimate. 

The  status  of  the  bastard  as  fixed  by  the  common  law,  except  as 
changed  by  statute,  remains  under  our  system  of  laws. 


DALTON  V.  THE  STATE. 

6  Blackf.  (Ind.)  357.  —  1842. 
Error  to  the  Clay  Circuit  Court. 

Blackford,  J.  Joseph  Griffith  and  Elizabeth,  his  wife,  petitioned 
the  Circuit  Court  for  a  writ  of  habeas  corpus  directed  to  Dalton,  re- 
quiring him  to  bring  before  the  court  the  body  of  a  certain  child 
aged  fifteen  months,  and  show  the  cause  of  its  detention.  The  peti- 
tion stated  that  said  Elizabeth  was  the  mother  of  the  child,  and 
that,  since  its  birth,  she  had  married  the  said  Joseph  Griffith. 

A  writ  of  habeas  corpus  was  accordingly  issued. 

The  defendant  made  the  following  return  to  the  writ:  i,  That 
the  said  Elizabeth,  being  unmarried,  and  alleging  the  defendant  to 


LEGITIMACY.  363 

be  the  father  of  the  child,  gave  it  to  him  to  keep,  etc. ;  2,  That  the 
Probate  Court,  the  child  being  illegitimate,  and  its  mother,  the  said 
Elizabeth  being  unmarried,  appointed  the  defendant  guardian  of  the 
child,  etc. 

Plea  to  the  first  cause  of  detention,  that  the  said  Elizabeth  was  the 
mother  of  the  child;  that  since  its  birth  she  had  married  Grififith; 
and  that  she  had  never  abandoned  the  child,  etc. 

Plea  to  the  second  cause  of  detention,  that  the  said  Elizabeth,  the 
mother  of  the  child,  had  no  notice  of  the  application  for  the  appoint- 
ment of  the  defendant  as  guardian  of  the  child,  etc. 

There  are  several  other  pleas  which  it  is  not  necessary  to  notice. 

Demurrers  to  the  pleas;  demurrers  overruled,  and  judgment  for  a 
return  of  the  child  to  the  mother,  etc. 

The  first  part  of  the  return  to  the  writ  is  insufificient.  The  mother 
of  an  infant  illegitimate  child  is  its  natural  guardian,  and  has  a  right 
to  its  custody.  Ex  parte  Ann  Knee,  i  New.  R.  148;  Wright  v. 
Wright,  2  Mass.  109;  The  People  v.  La7idt,  2  Johns.  R.  375.  The  gift 
of  the  child  to  the  defendant  by  its  mother  and  natural  guardian,  as 
mentioned  in  the  return,  did  not  deprive  her  before  her  marriage 
with  Griffith,  nor  did  it  deprive  her  and  her  husband  after  their 
marriage,  of  the  right  to  the  custody  of  the  child  during  its  infancy. 
The  plea  to  the  second  cause  of  detention  is  valid.  The  mother, 
being  the  natural  guardian  of  the  child,  could  not  be  deprived  of 
that  guardianship  by  the  appointment  of  another  guardian,  of  the 
application  for  which  appointment  she  had  no  notice. 

Per  Curiam.     The  judgment  is  affirmed,  with  costs. 


BROCK  V.  THE  STATE,  ex  rel.  JOHNSON. 

85   Ini).  397. —  1882. 

Elliott,  J.  The  appellee  insists  that  the  bill  of  exceptions  does 
not  show  that  it  contains  all  the  evidence,  and  that  consequently 
no  questions  are  presented  by  this  appeal.  The  bill  does  not,  it  is 
true,  contain  the  usual  formula,  but  it  does  contain  a  statement 
clearly  and  unequivocally  showing  that  all  the  evidence  is  incorpo- 
rated. Where  the  bill  of  exceptions  fully  shows  that  all  the  evi- 
dence given  upon  the  trial  is  set  forth,  the  precise  form  of  words 
used  in  showing  that  fact  is  not  of  controlling  importance. 

On  the  24th  of  September,  1877,  the  relatrix,  Fanny  Johnson, 
then  Fanny  Dunn,  instituted  proceedings  against  appellant,  under 
the  statute  regulating  proceedings  in  cases  of  bastardy;  the  justice 
before  whom  they  were  instituted  made  the  proper  order  transfer- 


364  PARENT  AND   CHILD. 

ring  the  case  to  the  Circuit  Court;  before  trial  in  that  court  the 
reiatrix  and  the  appellant  were  married  and  the  prosecution  against 
the  latter  was  dismissed.  There  is  evidence  tending  to  show  that  the 
appellant  married  the  reiatrix  for  the  purpose  of  escaping  from 
the  prosecution  against  him,  and  that  at  the  time  he  married  her  he 
intended  to  abandon  her  and  the  child.  Some  time  after  the  mar- 
riage she  applied  for  and  obtained  a  decree  of  divorce. 

The  question  for  decision  is,  whether  the  reiatrix  can  maintain 
proceedings  under  the  statute  to  compel  appellant  to  furnish  means 
of  support  for  the  child  born  out  of  wedlock.  If  the  marriage  legiti- 
mized the  child,  then  it  is  quite  clear  that  the  prosecution  cannot 
be  maintained.  If  the  child  was  once  made  legitimate,  no  subse- 
quent act  could  take  from  it  this  character,  and  give  it  that  of 
illegitimacy.  The  case,  therefore,  turns  upon  the  answer  to  the 
question,  did  the  marriage  subsequent  to  birth  of  the  child  legiti- 
mize it  ? 

One  among  the  old  doctrines  of  the  common  law  is  the  rule  that 
children  born  during  wedlock  are  legitimate,  although  begotten  be- 
fore marriage.  Our  cases,  acting  upon  this  rule,  have  declared  that 
marriage  bars  a  prosecution  for  bastardy  in  such  cases.  Moran  v. 
State  ex  rel.,  73  Ind.  208;  Doyle  v.  State  ex  rel.,  61  Ind.  324.  But 
the  rule  is  not  decisive  of  this  case,  for  the  child  of  these  parties  was 
born  before  marriage. 

The  civil  law  declares  that  marriage  legitimizes  children  born  be- 
fore marriage.  The  common  law  is  different;  a  subsequent  mar- 
riage does  not  legitimize  such  children.  The  bishops  of  England 
pressed  upon  the  House  of  Lords  the  adoption  of  the  rule  of  the  civil 
law,  but,  as  the  old  record  runs:  "  And  all  the  earls  and  barons  with 
one  voice  answered  that  they  would  not  change  the  law  of  the  realm, 
which  hitherto  had  been  used  and  approved."  The  old  chronicler, 
in  speaking  of  this  decision,  says:  "  And  the  which  noble,  courage- 
ous and  heroic  answer,  all  the  lawyers  do  mightily  approve."  As 
the  common  law  prevails  in  our  state,  we  must  follow  it  unless  we 
find  it  in  conflict  with  some  statute  of  our  own. 

Our  statute  adopts  the  rule  of  the  Roman  law,  sees.  2475  and  2476, 
R.  S.  1881.  Mr.  Schouler  says:  "This  doctrine  of  the  civil  law 
has  found  great  favor  in  the  United  States.  It  has  prevailed  for 
many  years  in  the  states  of  Vermont,  Maryland,  Virginia,  Georgia, 
Alabama,  Mississippi,  Louisiana,  Kentucky,  Missouri,  Indiana,  and 
Ohio."     Schouler,  Domestic  Relations,  309. 

It  is  clear  that  the  acknowledgment  by  the  father  made  the  child 
his  heir  apparent,  and  removed  from  it  the  stain  of  illegitimacy.  It 
is  not  important  whether  the   acknowledgment  of  legitimacy  was 


ADOPTION.  365 

made  for  a  good  or  for  an  evil  purpose;  it  fixed  the  status  of  the 
child,  and  that  cannot  be  changed  by  anything  the  father  or  mother 
may  do.     Having  removed  the  ' '  bar  sinister, ' '  they  cannot  replace  it. 

The  question  here  is,  not  whether  the  relatrix  may  have  some 
cause  of  action  against  the  appellant,  but  whether  she  can  maintain 
a  prosecution  under  the  statute  for  the  maintenance  of  a  bastard 
child.  As  the  child  cannot  be  considered  a  bastard,  it  is  very  clear 
that  the  prosecution  must  fail. 

Judgment  reversed.' 


Adoption. 
HUMPHRIES  V.   DAVIS. 

100  Ind.  274. — 1884. 

Elliott,  J.  Isaac  Davis  and  his  wife,  Jesse  Davis,  adopted,  as 
their  child,  Emily  Davis,  the  natural  child  of  Elizabeth  Davis,  now 
Elizabeth  Krug.  About  a  year  after  the  adoption  of  the  child,  Mrs. 
Jesse  Davis  died,  leaving  as  her  only  heirs  her  husband  and  her 
adopted  daughter,  and  within  a  year  the  adopted  daughter  also  died. 
The  natural  mother  claims  two-thirds  of  the  land  which  her  child 
inherited  from  Mrs.  Jesse  Davis,  and  conveyed  part  of  it  to  the 
appellant.  This  claim  the  surviving  husband  resists,  and  the  ques- 
tion is.  Who  shall  have  the  land,  the  surviving  husband  or  the  natu- 
ral mother?  We  deem  it  one  of  the  important  factors  in  this  legal 
problem  that  the  land  vested  in  the  child  solely  by  virtue  of  its 
legal  relationship  to  Mrs.  Davis,  and  not  by  virtue  of  its  natural 
relationship  to  any  one.  The  title  vested  in  the  adopted  child  by 
force  of  law,  and  not  because  of  any  inheritable  right  springing  from 
a  natural  kinship. 

In  the  case  of  Davis  v.  Krug^  95  Ind.  i,  this  element  was  con- 
sidered one  of  importance,  and  it  was  held  that  property  derived  by 
the  child  from  one  of  the  persons  by  whom  it  had  been  adopted  went 
to  its  other  parent  by  adoption,  rather  than  to  its  natural  mother. 
We  limit  our  decision  in  this  instance,  as  it  was  limited  in  the  former 
case,  to  the  property  derived  from  one  of  the  adopting  parents  by 
inheritance,  and  confine  it  to  the  question  of  the  rights  of  the  natu- 
ral mother  as  against  the  surviving  parent  of  the  deceased  child, 
who  became  such  by  law,  and  not  by  nature;  but,  in  thus  limiting 
our  decision,  we  do  not  mean  to  intimate  that  if  the  property  came 

'  As  to  recognition  in  one  jurisdiction  of  legitimacy  acquired  in  another  juris- 
diction,  see  Miller  v.  Miller,  91  N.  Y.  315. 


366  PARENT   AND   CHILD. 

to  the  adopted  child  otherwise  than  by  inheritance  from  kinsmen  of 
its  own  blood,  the  adoptive  parents  would  not  inherit  to  the  exclu- 
sion of  the  natural  mother.  The  case  to  which  we  have  referred  is 
decisive  of  this  controversy,  but  as  it  has  been  vigorously  assailed, 
we  have,  at  the  earnest  solicitation  of  counsel,  again  examined  the 
question. 

The  equity  of  the  case  is  with  the  surviving  husband  and  against 
the  natural  mother  who  gave  up  her  child,  sundering  all  maternal 
ties,  and  suffering  a  stranger  to  take  a  mother's  place.  The  hus- 
band, who  enabled  his  wife  to  acquire  or  preserve  her  property,  has 
infinitely  stronger  claims  than  the  natural  mother,  who  cast  aside 
her  child.  Rules  of  law  are  intended  to  secure  justice,  and  justice 
requires  that  the  husband  who  has  maintained  the  wife  should  be 
preferred  to  the  mother  of  the  child  which  was  the  child  of  his  wife 
only  by  adoption.  Equity  is  natural  justice,  and  natural  affection 
and  natural  right  make  a  strong  equity  in  the  husband's  favor. 
Suppose  that  the  claim  were  urged  by  a  surviving  wife,  instead  of 
the  husband,  in  such  a  case  as  this,  would  it  then  be  doubted  that 
the  wife,  whose  joint  labor  and  care  had  aided  in  accumulating  the 
property,  should  be  preferred  to  the  natural  mother  who  was  a 
stranger,  both  in  blood  and  in  law,  to  the  person  who  was  the  source 
of  title?  Must  the  wife  be  put  off  with  a  paltry  share  to  make  room 
for  a  stranger  who  has  no  claim  upon  the  bounty  of  the  husband,  nor, 
of  right  any  place  in  the  husband's  affections?  The  principle  which 
rules  in  the  one  case  must  govern  in  the  other.  We  have  shown  the 
equity  of  the  case  for  the  reason  that  equity  has  a  potent  influence 
in  the  construction  of  statutes.  Courts  always  endeavor  to  so  con- 
strue a  statute  as  to  make  it  an  instrument  of  justice.  As  Hobart, 
C.  J.,  long  ago  said,  "  equity  must  necessarily  take  place  in  the  ex- 
position of  statutes."  Courts  can  neither  wrest  words  from  their 
plain  meaning,  nor  violate  the  spirit  of  a  statute  upon  their  own 
notions  of  natural  justice;  but,  where  the  statute  is  general  in  its 
terms,  and  not  clear  and  definite  in  its  letter  and  scope,  courts  may 
give  it  such  a  construction  as  will  make  its  operation  just  and  bene- 
ficial. To  aver  the  contrary  would  be  to  assume  that  the  legislature 
did  not  intend  to  make  a  just  law.  There  is  nothing  in  the  statute 
before  us  requiring  us  to  declare  that  the  rights  of  a  surviving  hus- 
band shall  yield  to  the  rights  of  the  natural  mother  of  the  child 
which  he  had  joined  with  his  wife  in  adopting.  When  the  statute  is 
read  by  the  light  of  the  civil  law  from  which  its  principles  are  bor- 
rowed, and  is  considered  in  connection  with  the  general  principles  of 
the  law  of  descent  and  the  statutes  upon  that  subject,  it  becomes  clear 
that  its  construction  must  be  that  which  natural  justice  requires. 


ADOPTION.  367 

The  common  law  made  no  provisions  for  the  adoption  of  chil- 
dren, and  we  can  get  no  light  from  that  source.  Krug  v.  Davis,  87 
Jlnd.  590;  Ross  V.  Ross,  129  Mass.  243;  s.  c,  37  Am.  R.  321.  The 
Roman  law  made  provision  for  adopting  children,  and  the  provisions 
of  that  law,  as  revised  and  changed  by  Justinian,  formed  a  complete 
system.  Sandar's  Justinian,  103,  105,  109.  The  adopted  child  was, 
as  that  law  declared,  "  assimilated,  in  many  points,  to  a  son  born  in 
lawful  matrimony."  That  law  preserved  to  the  child  all  the  family 
rights  resulting  from  his  birth,  and  secured  to  him  all  the  family 
rights  produced  by  the  adoption.  Sandar's  Justinian,  105.  The 
Supreme  Court  of  Louisiana,  in  discussing  this  subject,  says: 
"  And  the  effect  was  such  that  the  person  adopted  stood  not  only 
himself  in  relation  of  child  to  him  adopting,  but  his  children  became 
the  grandchildren  of  such  person."  At  another  place  the  court 
said:  "  Now,  when  in  an  enabling  or  permissive  statute,  the  legis- 
lature has  used  a  word  so  familiar  in  its  ordinary  acceptation,  and 
so  well  known  in  the  sources  of  our  law,  does  it  become  the  judiciary 
to  say  that  it  has  not  such  meaning,  because  the  law-giver  has  not 
himself  expressly  defined  the  sense  in  which  he  intended  the  word 
should  be  taken?  "  It  is  also  said:  "  The  law-giver  ought  not  to 
be  supposed  ignorant  of  this  state  of  things,  or  to  use  a  term  in  a 
more  restricted  sense  than  it  was  formerly  known  to  our  laws." 
Vidalw.  Commagere,  13  La.  Ann.  516.  It  is  true  that  the  remarks  of 
the  court  apply  with  rather  more  force  to  a  state  which  has  adopted 
the  civil  law  than  to  one  where  the  common  law  prevails,  but  they, 
nevertheless,  declare  a  general  principle  which  has  a  place  in  all 
enlightened  systems  of  jurisprudence,  for  it  is  established  law  that 
where  a  rule  is  borrowed  from  another  body  of  laws,  courts  will 
look  to  the  source  from  which  it  emanated  "to  ascertain  its  effect 
and  force.  City  of  Valparaiso  v.  Gardner,  97  Ind.  i.  If,  as  the  civil 
law  so  fully  provided,  a  child  of  the  adoptive  son  stood  in  the  rela- 
tion of  grandchild  to  the  adoptive  father,  then  the  son  himself  must 
stand  as  the  child  of  that  father.  The  statute  of  Massachusetts 
makes  some  exceptions  as  to  the  child's  status,  and  it  was  held  that 
the  adoptive  child  as  to  property  of  the  adoptive  father  stood  as  a 
natural  child,  save  in  so  far  as  the  exceptions  declared  otherwise, 
the  court  saying:  "  The  adopted  child,  in  this  case,  therefore,  in 
construing  her  father's  settlement,  must  be  regarded  in  the  light  of 
a  child  born  in  lawful  wedlock,  unless  the  property  disposed  of  by 
the  settlement  falls  within  one  of  the  exceptions."  Sewall  v.  Rob- 
erts,  115  Mass.  262. 

In  Ross  V.  Ross,  supra,  it  was  said,  in  reviewing  the  cases  of 
Schafer  v.   Eneu,  54   Pa.    St.   304,   and   Commonwealth    v.  Nancrede, 


368  PARENT   AND    CHILD. 

32  Pa.  St.  389,  "  But  the  opinion  in  each  of  those  cases  clearly 
recognizes,  what,  indeed,  is  expressly  enacted  in  the  statute,  that,  as 
between  the  adopted  child  and  the  adopting  father,  the  child  has  all 
the  rights  and  duties  of  a  child,  and  the  capacity  to  inherit  as  such." 
Elsewhere  in  the  opinion  from  which  we  have  quoted  it  is  said: 
"  It  is  the  rights,  duties  and  capacities,  arising  from  the  event 
which  creates  a  particular  status,  that  constitute  the  status  itself 
and  afford  the  best  definition  of  it."  It  is  true  that  the  law  cannot 
do  the  work  of  nature  and  create  one  a  child  who  by  nature  is  a 
stranger,  but  it  may  fix  the  legal  status  of  the  child.  While,  there- 
fore, the  Pennsylvania  court  is  right  in  saying  that  the  law  cannot 
make  the  child  a  natural  one,  the  conclusion  that  the  status  of  the 
adoptive  child  to  the  adoptive  father  may  not  be  fixed  by  law  does 
not  follow  by  any  means.  The  law  may  declare  the  status,  and 
from  the  status  courts  must  determine  the  correlative  rights  of  par- 
ent and  child  thus  created.  One  of  the  acutest  of  legal  minds  and 
clearest  of  writers  says:  "  There  are  certain  rights  and  duties,  with 
certain  capacities  and  incapacities  to  take  rights  and  incur  duties, 
by  which  persons,  as  subjects  of  law,  are  variously  determined  to 
certain  classes.  The  rights,  duties,  capacities,  or  incapacities,  which 
determine  a  given  person  to  any  of  these  classes,  constitute  a  condi- 
tion or  status  which  the  person  occupies,  or  with  which  the  person 
is  invested."      i  Austin,  Juris.  41. 

In  Burrage  v.  Briggs,  120  Mass.  103,  this  doctrine  was  carried 
very  far,  for  it  was  there  held  that  the  status  of  the  adoptive  child 
was  such  that  it  would  take  as  a  child  under  a  residuary  clause  of  the 
adoptive  father's  will,  where  the  specific  legacy  had  lapsed.  It 
was  decided  in  Limay  v.  Vantyne,  40  Vt.  503,  that  as  to  the  right  to 
recover  for  services  there  was  no  difference  between  an  adoptive 
and  a  natural  child. 

In  the  case  of  Barnes  v.  Allen,  25  Ind.  222,  it  was  held  that  the 
adoptive  child  was  the  heir  of  the  adoptive  father  in  the  degree  of  a 
child,  and  was  entitled  to  inherit  from  him  all  the  estate  of  which  he 
could  deprive  his  wife.  This  is  impliedly  an  assertion  that  as  to  the 
adoptive  parent  the  status  of  the  adoptive  child  is,  for  the  purpose 
of  inheriting  from  the  father,  that  of  a  natural  child.  The  court,  in 
Isenhour  v.  Isenhour,  52  Ind.  328,  said:  "The  law  can  endow  an 
adoptive  child  with  all  the  rights  in  property  of  a  natural  child,  but 
it  has  not  the  power  to  make  him  the  natural  child  of  any  woman 
but  his  natural  mother."  It  was  also  said,  in  speaking  of  the  adop- 
tion by  the  husband,  instead  of  by  both  the  husband  and  wife,  that 
"  If  he  had  been  adopted  by  both,  perhaps  he  might  have  been  held 
as  a  child  '  by  a  previous  wife,'  within  the  proviso  in  sec.  24  of  the 


ADOPTION.  369 

act  regulating  descents."  The  cases  of  Krug  v.  Davis,  supra,  and 
Davis  V.  Krug,  supra,  very  explicitly  affirm  that  as  to  the  adoptive 
parents  and  their  property,  the  status  of  the  person  adopted  is  that 
of  a  natural  child. 

In  a  recent  text-book  it  is  said:  "  And  the  rights  of  the  parent 
by  adoption  are  treated  substantially  as  those  of  a  natural  parent." 
2  Schouler,  Dom.  Rel.  sec.  232.  This  author  thus  interprets  our  case 
of  Barnhizel  \.  Ferrell,  47  Ind.  335:  "  An  adopted  child  usually  in- 
herits from  the  adopting  parent,  and  vice  versa;  but  otherwise  as  to 
collateral  kindred."     Schouler,  Dom.  Rel.,  sec.  232,  n. 

In  the  case  referred  to,  the  court  correctly  laid  down  the  law  as 
to  the  status  of  the  child,  but,  misled  by  confusing  a  natural  rela- 
tion with  a  legal  status,  was  carried  to  an  erroneous  conclusion. 
The  failure  to  give  just  importance  to  the  difference  between  a  legal 
status  and  a  natural  relation  is  the  error  that  invalidates  the  reason- 
ing in  that  case,  for  the  court  there  affirmed  the  existence  of  the 
status,  but  stripped  it  of  the  incidents  inseparably  annexed  to  it,  and 
this  was  a  plain  violation  of  the  logical  principle  that  when  proper- 
ties necessarily  inhere  in  the  thing,  they  cannot  be  separated  from  it. 
Having  affirmed  the  existence  of  the  legal  status,  the  properties  in- 
separably connected  with  it  should  also  have  been  affirmed  as  gov- 
erning facts  in  the  case.  That  we  are  right  in  our  view  is  evidenced 
by  the  summing  up  of  the  result  of  the  reasoning  in  that  case.  "  In 
such  case,"  said  the  court,  in  speaking  of  the  adoption  by  the  father 
only,  "  the  child  might  inherit  from  the  adopted  father,  but  not 
from  his  wife.  He  would  have  an  adopted  father,  but  not  an 
adopted  mother.  He  would  have  no  right  as  her  child."  This, 
surely,  is  a  full  recognition  of  the  status  of  the  adopted  child,  and, 
if  it  be,  then  the  correlative  relation  of  father  must  also  exist.  What 
was  decided  in  Hole  v.  Robbins,  53  Wis.  514,  is  shown  in  the  conclud- 
ing statement  of  the  opinion,  which  reads  thus:  "  In  the  case  at  bar, 
the  property  which  is  claimed  by  the  adopted  parents  came  to 
the  child  from  the  natural  parents,  and  justice  would  seem  to 
demand  that  it  should  descend  to  them  or  their  kindred  upon 
his  death;  and  there  being  nothing  in  the  statutes  concerning 
the  adoption  of  children  which  clearly  indicates  an  intention  on 
the  part  of  the  legislature  to  change  the  order  of  descent  from  the 
adopted  child,  we  must,  upon  authority  and  principle,  hold  that  the 
property  descends  according  to  the  general  law  regulating  the  de- 
scent of  real  estate."  It  will  be  readily  perceived  that  the  decision 
from  which  we  have  quoted  cannot  be  authority  to  prove  that  the 
natural  heirs  shall  take,  to  the  exclusion  of  a  surviving  adoptive 
parent,  property  which  the  child  acquired  solely  by  virtue  of  his  legal 
[Domestic  Rf.i.ations  —  24.] 


370  PARENT   AND   CHILD. 

Status,  or  that  the  status  of  the  adoptive  child  is  not,  as  to  all  legal 
incidents,  the  same  as  that  of  a  natural  child. 

The  point  of  decision  in  IVagncr  v.  Varner,  50  Iowa,  532,  is,  that 
where  a  father  adopted  two  children  of  his  daughter,  and  afterwards 
died,  leaving  no  will,  the  children  so  adopted  inherited  from  him  as 
his  own  children,  and  inherited,  also,  the  share  of  their  deceased 
mother.  The  court  said:  "  By  the  act  of  adoption  these  children 
became  in  a  legal  sense  the  children  of  John  Burner."  This  is  an 
explicit  declaration  of  the  legal  status  created  "  by  the  event  "  of 
adoption. 

In  Kcegan  v.  Geraghty,  loi  111.  26,  the  court  held  that  the  adop- 
tive child  could  only  inherit  from  the  adoptive  parents,  and  could 
not  inherit  from  the  lineal  or  collateral  heirs  of  the  parents,  and  this 
ruling,  it  is  clear,  does  not  controvert  the  proposition  that  the  status 
is  the  correlative  one  of  parent  and  child.  The  case  of  Reinders  v. 
Koppelman,  68  Mo.  482,'  decides  that  the  status  of  parent  and  child 
exists,  but  that  the  right  of  inheritance  is,  by  force  of  the  statute, 
vested  only  in  the  child,  thus  narrowing  the  whole  question  to  the 
one  statute. 

The  authorities  we  have  discussed  unite  in  affirming  that  the 
status  of  an  adoptive  child  for  all  legal  purposes,  and  as  to  the  prop- 
erty inherited  from  an  adoptive  parent,  is  that  of  a  natural  child. 
This  supplies  a  premise  which  guarantees  the  conclusion  that  the 
adoptive  father  must  inherit  from  it  property  which  came  to  it  from 
his  wife  and  the  child's  adoptive  mother.  It  is,  indeed,  the  only 
logical  conclusion  deducible  from  the  premise  granted.  If  there  is 
a  child,  there  must  be  a  parent.  The  status  of  child  necessarily 
imports  that  of  parent.  From  this  conclusion  there  is  no  escape  un- 
less logic  is  defied  or  disregarded.  Parent  and  child  are  correlative 
terms;  the  one  relation  implies  the  other.  It  is  logically  impossible 
to  conceive  the  relation  of  child  without  in  the  same  conception 
implying  that  of  parent.  To  affirm  that  there  is  a  child  is  to  affirm, 
upon  axiomatic  principles,  that  there  is  a  parent,  for  one  correlate 
implies  the  existence  of  that  of  which  it  is  the  correlative.  The 
logicians  thus  state  this  logical  principle:  "Where  the  terms  are 
correlative  in  the  same  subject,  if  one  is  predicated  of  the  subject 
the  oLher  must  be  also."  If,  then,  we  predicate  of  the  subject, 
property  inherited  from  an  adoptive  mother,  the  status  child,  we 
must  predicate  of  the  same  subject  the  correlative  status,  father. 

It  is,  as  we  have  seen,  the  legal  status  of  the  person  respecting  the 
subject  that  determines   his    legal   rights.      To  again   quote   from 


'  This  case  is  discussed  in  Reinders  v.  Koppelman,  94  Mo.  338. 


ADOPTION.  371 

Austin:  "The  law  of  persons  is  the  law  of  status  or  conditions. 
*  *  *  The  rights  and  duties,  capacities  and  incapacities  which 
constitute  a  status  or  condition,  are  commonly  considerable  in  num- 
ber and  various  in  kind.  *  *  *  Such  are  the  rights  and  duties, 
capacities  and  incapacities  of  husband  and  wife,  parent  and  child, 
guardian  and  ward.  2  Austin,  Juris.  709,  711.  As  the  status  of 
the  surviving  husband  and  adoptive  father  is  that  of  father,  his  in- 
terest in  the  land  which  the  deceased  child  held  in  virtue  of  the 
rights  vested  in  it  by  the  adoption  is  that  of  a  father,  since  it  is  of 
that  property,  as  the  subject,  that  the  status  of  parent  and  child  is 
predicated.  This  is  a  just  as  well  as  a  logical  result.  It  is  not  to 
be  presumed  that  the  legislature  maant  to  violate  logical  rules  by 
creating  the  legal  relation-of  child  without  the  corresponding  one  of 
parent,  nor  that  they  meant  to  thrust  out  the  surviving  husband  and 
father  for  the  benefit  of  a  person  that  was  a  stranger  to  the  ancestor 
who  was  the  source  of  title. 

Not  only  is  the  conclusion  which  we  have  stated  that  to  which 
the  cold  rules  of  logic  and  the  benign  ones  of  natural  equity  lead, 
but  it  is  also  the  conclusion  to  which  the  general  principles  both  of  the 
American  law  and  the  Roman  law  lead.  It  is  a  principle  of  both 
systems  of  jurisprudence,  that  in  case  of  failure  of  descendants  capa- 
ble of  taking,  the  inheritance  shall  go  back  to  the  kinsmen  of  the 
blood  from  which  it  came.  Our  statute  fully  recognizes  this  general 
principle,  for  it  provides  that  when  the  inheritance  comes  from  the 
paternal  line,  it  shall  go  back  to  the  kinsmen  of  that  blood,  but 
when  the  inheritance  comes  from  the  maternal  line,  it  shall  go  back 
to  the  kinsmen  of  the  mother's  side.  R.  S.  1881,  sec.  2471.  In 
analogy  to  this  general  principle,  it  should  be  held  that  one  con- 
nected by  so  close  a  relationship  as  that  of  husband  should  be  pre- 
ferred to  a  person  who  bore  no  relationship  whatever  to  the  ancestor. 
It  must  be  presumed  that  the  legislature  meant  the  statute  for  adop- 
tion of  children  to  confer  rights  consistent  with  the  general  policy 
of  the  law,  and  not  to  produce  discord  by  breaking  the  unity  of  the 
general  system.  To  produce  uniformity  and  harmony,  it  must  be 
held,  as  we  now  hold,  that  the  death  of  the  adoptive  child  casts  the 
inheritance  which  came  to  him  through  the  joint  adoption,  back  to 
his  adoptive  father,  and  not  upon  the  natural  mother,  who  was  an 
utter  stranger  to  the  person  from  which  the  title  flowed.  It  may 
be  that  this  would  require  that  what  the  adoptive  child  inherits  from 
its  natural  kinsmen  shall  go  back  to  them,  but,  if  so,  it  is  a  good 
result,  for  this  is  no  more  than  just.  This  was  the  civil  law,  and 
the  principle  is  declared  and  enforced  in  two  of  the  cases  cited. 
The  rule  which  we  adopt  does  not  cut  off  the  adoptive  child  from 


3/2  rARKNT    AND    CHILI). 

inheriting  from  its  natural  relatives.  It  may  inherit  from  them  and 
from  its  adoptive  parents.  This  was  the  rule  of  the  civil  law.  San- 
dar's  Justinian,  105.  The  principle  is  declared  in  JVagnerw  Fame/; 
supra,  where  it  was  said:  "  Because  of  the  adoption  the  child  acquires 
certain  additional  rights,  but  there  is  nothing  in  the  act  of  adoption 
which  in  and  of  itself  takes  away  other  existing  rights,  or  such  as 
may  subsequently  accrue."  The  reason  which  supports  this  rule 
does  not  apply  to  the  mother.  She,  in  legal  effect,  severs  all  legal 
rights  to  the  property  which  the  child  may  acquire  by  virtue  of  its 
status  to  the  adoptive  parents,  for,  as  to  that  property,  she  permits 
the  correlative  relation  of  parent  and  child  to  exist  between  the 
child  and  the  adoptive  parents.  It  does  her  no  injustice  to  leave 
her  with  her  right  to  such  property  as  her  child  may  acquire  other- 
wise than  through  the  adoptive  parents,  but  it  would  do  great  injus- 
tice to  permit  her  to  secure  the  property  acquired  by  her  child  in 
virtue  of  both  its  natural  and  adoptive  rights. 

If  it  be  the  law  that  an  adoptive  parent  cannot  inherit  from  the 
child  of  his  adoption  in  such  a  case  as  this,  then  most  harsh  and  un- 
just consequences  will  result  from  the  law.  We  suggest  one  in- 
stance where  this  would  be  the  result:  A  child  is  adopted  by  a  hus- 
band and  wife,  the  wife  dies  the  owner  of  $100,000  of  real  estate, 
then  the  child  dies,  without  a  natural  kinsman,  near  or  remote,  and 
the  result  (if  the  law  be  that  the  adoptive  father  cannot  inherit)  is 
that  two-thirds  of  the  land  escheats  to  the  state.  We  have  put  this 
case  because  it  is  not  an  improbable  one,  for  many  children  who  are 
adopted  into  families  are  waifs  whose  parents  and  kinsmen  are  un- 
known. We  are  not  willing  to  declare  a  rule  that  will  lead  to  such 
results. 

The  Supreme  Court  of  Missouri  recognize  and  lament  the  injustice 
of  the  rule  which  it  adopts,  for  we  find  in  the  opinion  this  language: 
"  It  may  seem  great  injustice  that  the  property  derived  from  one 
source  should  go  in  a  channel  never  contemplated  by  the  donor." 
In  speaking  of  the  rule  of  the  Code  Napoleon  and  of  the  civil  law, 
that  the  property  which  came  to  the  child  from  its  natural  kinsmen 
shall  go  back  to  them,  and  that  when  the  estate  came  from  the  adop- 
tive parents,  it  should  go  back  to  these  parents,  the  court  said: 
"  Such  a  provision  commends  itself  to  our  sense  of  justice,  but  it 
is  not  in  our  statute.  What  changes,  if  any,  were  intended  to  be 
made  in  our  statute  of  descents  in  connection  with  this  law  of  adop- 
tion is  a  mere  matter  of  conjecture,  and  we  have  no  authority  to 
depart  from  the  rules  of  descent  established  in  the  general  statute 
on  that  subject."  We  concur  with  that  learned  court  in  its  denun- 
ciation of  the  rule  it  adopts,  but  we  cannot  think  that  it  was  neces- 


ADOPTION.  373 

sary  to  adopt  it.  We  are  convinced  that  the  court,  in  Barnhizel  v. 
Ferrell,  supra,  and  in  the  case  from  which  we  have  quoted,  took  en- 
tirely too  narrow  a  survey  of  the  question.  A  statute  is  not  to  be 
construed  as  if  it  stood  solitary  and  alone,  complete  and  perfect  in 
itself,  and  isolated  from  all  other  laws.  It  is  not  to  be  expected 
that  a  statute  which  takes  its  place  in  a  general  system  of  jurispru- 
dence shall  be  so  perfect  as  to  require  no  support  from  the  rules  and 
statutes  of  the  system  of  which  it  becomes  a  part,  or  so  clear  in  all 
its  terms  as  to  furnish  in  itself  all  the  light  needed  for  its  construc- 
tion. It  is  proper  to  look  to  other  statutes,,  to  the  rules  of  the  com- 
mon law,  to  the  sources  from  which  the  statute  was  derived,  to  the 
general  principles  of  equity,  to  the  object  of  the  statute,  and  to  the 
condition  of  affairs  existing  when  the  statute  was  adopted.  Taylor 
\.  Board,  etc.,  67  Ind.  383;  State  ex  rel.  v.  Stvope,  7  Ind.  91; 
F rather  v.  Jeffersonville,  etc.  R.  R.  Co.  52  Ind.  16;  Allison  v.  Hub- 
bell,  17  Ind.  559;  Aurora,  etc.  R.  R.  Co.  v.  City  of  Lawrenceburgh, 
56  Ind.  80;  Hedrick  v.  Kramer,  43  Ind.  362.  As  it  was  said  in 
Aurora,  etc.  R.  R.  Co.  v.  City  of  Lawrenceburgh,  supra,  "  Construc- 
tion has  ever  been  a  potent  agency  in  harmonizing  the  operation  of 
statutes  with  equity  and  justice."  Statutes  are  to  be  so  construed  as 
to  make  the  law  one  uniform  system,  not  a  collection  of  diverse  and 
disjointed  fragments.  When  this  principle  of  construction  is 
adopted,  "  an  enactment  of  to-day  has  the  benefit  of  judicial  render- 
ings extending  back  through  centuries  of  past  litigation."  Bishop, 
Written  Laws,  sec.  242b.  "A  statute,"  says  the  author  just  re- 
ferred to  "  must  be  construed  equally  by  itself  and  by  the  rest  of 
the  law.  The  mind  of  the  interpreter,  if  narrow,  will  stumble." 
"  The  completed  doctrine,  resulting  from  a  bringing  together  of  its 
parts,  is,  that  all  laws,  written  and  unwritten,  of  whatever  sorts  and 
at  whatever  different  dates  established,  are  to  be  construed  together, 
contracting,  expanding,  limiting,  and  extending  one  another  into  one 
system  of  jurisprudence,  as  nearly  harmonious  and  rounded  as  it  can 
be  made  without  violating  unyielding  written  or  unwritten  terms." 
Bishop,  Written  Laws,  sees.  113a,  86. 
Judgment  affirmed.' 

'  See  also  In  re  Thorne,  155  N.  Y.  140. 

In  Reinders  v.  Koppebnan.  94  Mo.  338,  344,  where  an  adopted  child  claimed  under 
a  will  which  devised  property  to  "  the  nearest  and  lawful  heirs  of  mine,"  Justice 
Brace  said:  "The  status  or  relation  of  an  adopted  heir  is  a  lawful  one,  since 
the  law  sanctions  and  provides  a  method  for  its  creation;  but  the  relation  is  not 
the  creature  of  the  law,  but  of  the  deed  of  adoption.  A  child  by  adoption  is,  in 
a  limited  sense,  made  an  heir,  not  by  the  law,  but  by  the  contract  evidenced  by 
deed.  '  Adopted  heir,'  or  '  heir  by  adoption,'  would  be  appropriately  descriptive 
of  such  relation;  contra-distinguished  from  such  an  heir  are  those  upon  whom 
the  law  casts  descent,  who  are   constituted  heirs  by  law.     These  are  appropri- 


374 


PARENT   AND    CHILD. 


Strahan,  J.,  IN  FURGESON  v.  JONES. 

17  Ore.  204,  213. — 1888. 

I  THINK  the  findings  show  that  the  attempted  adoption  vras  never 
consummated,  because  the  statute  under  which  the  proceedings  were 
had  was  never  complied  with.  The  statute  requires  the  consent  in 
writing  of  the  parents,  unless  they  are  brought  within  its  exceptions. 
Here  only  one  parent  consented,  and  there  was  no  attempt  made  to 
bring  him  within  the  exceptions  contained  in  the  statute,  and  the 
petition  was  not  served  upon  him.  A  question  closely  akin  to  this 
in  principle  came  before  the  Supreme  Court  of  Iowa,  in  Tylc  v.  Rey- 
nolds, e^'^  Iowa,  146,  and  the  court  said-  "  Therefore,  a  child  by 
adoption  cannot  inherit  from  the  parent  by  adoption  unless  the  act 
of  adoption  has  been  done  in  strict  accord  with  the  statute.  The 
statutory  conditions  and  terms  are  that  the  written  instrument  must 
be  executed,  signed,  and  acknowledged,  and  filed  for  record;  when 
this  is  done  the  act  is  complete.  If  the  named  requisites  are  not 
done,  then  the  act  is  not  complete,  and  the  child  cannot  inherit  from 
the  parent  by  adoption.  The  filing  for  record  is  just  as  important  in 
a  statutory  sense  as  the  execution  or  acknowledgment.  One  may  be 
dispensed  with  as  well  as  the  other,  for  the  right  depends  solely 
upon  the  statute.  There  is  no  room  for  construction,  unless  we 
eliminate  words  from  the  written  law,  and  this  we  are  not  authorized 
to  do."  Long  V.  Heivitt,  44  Iowa,  262,  and  Keegan  v.  Geraghty,\o\ 
111.  26,  lay  down,  in  effect,  the  same  principle. 

In  the  state  of  New  Jersey  a  statute  is  in  force  very  similar  to 
ours,  which  came  before  the  prerogative  court  of  that  state  and  re- 
ceived a  construction  in  Luppie  v.  IVinans,  37  N.  J.  Eq.  245.  In 
that  case  the  court  said:  "The  child  was  under  fourteen  years  of 
age,  and  the  court,  as  appears  by  the  opinion,  construed  the  statute 
as  requiring  no  consent,  either  on  part  of  parent  or  child,  to  the  adop- 
tion in  such  case,  but  held  that  in  such  cases  the  statute  confides 
the  whole  matter  to  the  discretion  of  the  Orphans'  Court  without  re- 
gard to  the  wishes  of  either  parent  or  child.  This  construction  is 
entirely  inadmissible.  It  would  make  the  law  liable  to  be  the  instru- 
ment of  the  forcible  transfer  of  one  man's  child  to  another  person, 
in  spite  of  the  parent's  opposition,  provided  the  court  deems  it 
advantageous  for  the  child  that  the  transfer  be  made.     The  law  ex- 


ately  described  as  heirs-at-law  or  heirs  by  the  law.  *  *  *  The  relation  of  an 
heir  by  adoption  is  an  exceptional  and  unusual  one,  and  does  not  come  within 
the  ordinary  and  usual  meaning  of  the  words,  '  lawful  heirs,'  and  those  words 
ought  not  be  held,  ex  vi  termini,  to  include  an  adopted  heir." 


ADOPTION.  375 

pressly  gives  to  the  decree  of  adoption  the  effect  of  severing  abso- 
lutely the  legal  ties  between  the  parent  and  the  child,  and  putting 
an  end  to  their  reciprocal  relations.  It  declares  that  from  the  date 
of  the  decree,  the  rights,  duties,  and  privileges,  and  relations  be- 
tween the  child  and  the  parent,  except  the  right  of  inheritance,  are 
severed,  and  transforms  them  all.  *  *  *  ^  just  and,  it  seems  to 
ine,  an  obvious  and  necessary  construction,  of  our  statute  of  adoption 
is  that  if  the  child  be  under  fourteen  there  need  be  no  consent  on 
its  part,  but  the  consent  of  the  parent  or  parents,  if  there  be  any 
living,  provided  they  be  known  and  not  hopelessly  intemperate  or 
insane  and  have  not  abandoned  the  child,  must  be  obtained."  The 
same  view  seems  to  prevail  in  Pennsylvania  under  the  statute  of  that 
state.  The  only  case  cited  upon  the  argument  from  that  state  is 
Booth  V.  Va?i  Alla?i,  7  Phila.  401;  Hurley  v.  O' Sullivan,  137  Mass. 
84.  The  court,  in  passing  upon  the  effect  and  construction  of  the 
statute  said:  "  But  there  is  one  other  objection  which  we  think  is 
fatal.  The  act  of  May  4,  1855,  empowers  the  court  to  make  a 
decree  of  adoption  with  the  consent  of  the  parents  or  surviving 
parent,  or  if  there  be  none,  of  the  next  friend  of  an  infant.  The 
strict  legal  signification  of  the  term  '  parents  '  is  the  lawful  father  and 
mother  of  the  child;  but  it  may  be  questioned  whether  it  does  not 
mean  more  than  this  in  the  act  of  1855, —  whether  the  words  ought 
not  rather  be  taken  to  mean  those  who  stand  in  the  relation  of 
father  and  mother  to  the  infant.  If  this  be  the  correct  view,  then 
the  proceedings  for  leave  to  adopt  the  infant  as  hers  are  void  for 
want  of  consent  of  parents.  New  Hampshire  has  a  statute  similar 
to  ours,  which  came  before  the  Supreme  Court  of  Massachusetts  in 
Foster  v.  Waterman,  124  Mass.  592.  A  child  of  persons  resident  in 
the  state  of  Massachusetts  had  been  adopted  in  the  state  of  New 
Hampshire  and  the  validity  of  said  adoption  was  the  question  to  be 
decided,  and  the  court  held  that  such  a  statute  is  not  to  be  pre- 
sumed to  extend  to  a  case  in  which  the  domicile  of  those  petitioning 
for  leave  to  adopt  a  child  is  in  another  state;  the  provision  in 
the  statute  of  New  Hampshire,  that  the  decree  may  be  made  in  the 
county  where  the  petitioner  of  the  child  resides,  implies  that  the 
statute  is  intended  to  be  limited  to  cases  in  which  all  the  parties 
have  their  domicile  in  that  state." 

It  was  claimed,  however,  that  the  adoption  was  complete  as  to  the 
defendant,  and  the  other  persons  who  were,  in  fact,  parties  to  the 
record.  This  construction  was  pressed  upon  the  Supreme  Court  of 
Iowa  in  Shearer  v.  Weaver,  56  Iowa,  and  rejected,  the  court  saying: 
"  Our  statute  having  provided  specifically  the  means  whereby  one 
sustaining  no  blood  relation  to  an  intestate  may  inherit  his  property. 


3/6  PARENT   AND   CHILD. 

the  rights  of  inheritance  must  be  acquired  in  that  manner,  and  can 
be  acquired  in  no  other  way."' 

From  these  citations,  and  the  plain  import  of  the  statute  itself,  it 
is  manifest  that  the  attempted  adoption  of  the  plaintiff  by  Jones  and 
wife  was  never  consummated,  and  that  the  plaintiff  never  acquired 
any  rights  to  inherit  Jones'  property  by  reason  of  the  facts  found 
by  the  court. 

The  proceedings  were  fatally  defective  because  the  father  of  the 
child  did  not  consent  to  the  adoption,  nor  was  any  notice  of  the 
application  for  such  adoption  served  upon  him,  nor  did  he  appear; 
and  being  a  non-resident  of  the  state,  I  am  inclined  to  the  opinion 
the  statute  did  not  apply  to  him.  However  that  may  be,  the  pro- 
ceedings were  fatally  defective  on  the  other  grounds.' 


Step-  Ch  ildren. 
FRETO  V.  BROWN. 

4  Mass.  675. — 1808. 

Parsons,  C.  J.  The  action  is  assumpsit  by  Freto,  a  minor,  who 
was  fifteen  years  old  in  1805,  to  recover  of  Brown  his  earnings  in 
Brown's  service  during  that  year. 

The  parties  have  agreed  on  a  case,  in  which  it  is  stated  that  the 
plaintiff's  father  is  dead,  and  his  mother  married  to  Robert  Pierce; 
that  during  the  year  1805,  the  plaintiff  lived  in  the  family  of  his 
father-in-law,  and  was  maintained  by  him;  but  was  a  fisherman  in 
the  defendant's  fishing  schooner  for  the  season,  in  which  he  earned 
the  money  demanded  in  this  action,  exclusive  of  the  advances  made 
for  his  use  by  the  defendant,  which  are  deducted.  The  balance  is 
$71.87,  which  Pierce,  the  father-in-law,  also  claims. 

The  father-in-law  is  not  obliged  to  maintain  the  plaintiff,  and  con- 
sequently is  not  entitled  to  his  earnings.  While  the  plaintiff  lived 
in  his  family,  and  was  maintained  by  him,  he  must  be  considered  a 
servant  de  facto  as  to  strangers,  who  cannot  question  the  right  of  the 
father-in-law  to  his  minor's  earnings.  But  this  rule  cannot  bind  the 
minor.  He  may  quit  the  family  at  his  own  discretion,  and  can  make 
no  contract,  which  he  cannot  avoid,  except  for  necessaries.  The 
father-in-law  may  recover  against  him  for  necessaries,  upon  an  im- 
plied assumpsit,  but  he  cannot  claim  his  earnings  against  the  minor's 

'  As  to  the  status  of  an  adopted  child  in  a  jurisdiction  other  than  that  in  which 
he  was  adopted,  see  Ross  v.  Ross,  129  Mass.  243. 


STEP-CHILDREN.  377 

consent.  If  he  could,  the  earnings  might  greatly  exceed  the  ex- 
penses of  maintenance;  the  whole  of  which  the  father-in-law  wouUl 
receive,  and  the  next  moment  might  turn  him  out  of  doors. 

In  this  case,  it  was  intimated  that  the  mother  is  guardian  by 
nature,  and  that  her  right  devolves  on  her  husband.  We  know  of  no 
such  right  of  devolution.  If  the  right  devolved,  the  duty  must  de- 
volve; but  it  is  clear  that  the  father-in-law  is  not  obliged  to  maintain 
his  children-in-law,  whether  the  mother  be  living  or  dead. 

Judgment  must  be  entered  for  the  plaintiff  for  $71.87,  the  balance 
of  his  earnings,  with  costs. 


SMITH  V.  ROGERS. 

24  Kans.  140. — '1880. 

Valentine,  J.  This  was  an  action  brought  by  the  plaintiff  in 
error,  in  the  Probate  Court  of  Shawnee  county,  on  an  account  against 
the  defendant  in  error,  as  executor  of  the  estate  of  Emma  J.  Rogers, 
deceased,  who  at  the  time  of  her  death  was  the  wife  of  the  defend- 
ant in  error.  When  the  said  Emma  J.  Rogers  was  seven  years  of 
age,  her  mother  intermarried  with  plaintiff  in  error,  and  said  Emma 
J.,  with  her  brother,  lived  with  her  mother  and  step-father  as  one  of 
the  family,  working  and  discharging  the  duties  of  a  child,  without 
any  contract  or  understanding  that  she  was  to  be  paid  for  her  labor, 
or  that  she  was  to  pay  for  her  maintenance.  After  she  became  of 
age,  she  married  the  defendant,  and  soon  after  her  marriage,  died. 
The  account  of  plaintiff  in  error  is  for  board  and  clothing,  furnished 
to  the  said  Emma  J.,  his  step-child,  while  she  was  a  minor.  The 
plaintiff  proved  his  account  in  accordance  with  the  facts  above 
stated,  and  rested;  whereupon  the  defendant  in  error  moved  the 
court  for  judgment  upon  the  pleadings  and  evidence,  which  motion 
was  sustained  by  the  Probate  Court.  The  plaintiff  took  the  case  to 
the  District  Court  on  petition  in  error,  where  the  judgment  of  the 
Probate  Court  was  affirmed,  and  the  plaintiff  now  brings  the  case  to 
this  court  for  review. 

The  only  errors  complained  of  by  the  plaintiff  in  error  as  occur- 
ring in  either  the  Probate  Court  or  the  District  Court,  are  as  follows: 
First,  The  court  erred  in  sustaining  the  motion  of  the  defendant  for 
judgment.  Second,  The  said  judgment  was  given  for  the  said  de- 
fendant, when  it  ought  to  have  been  given  for  the  said  Charles  E. 
Smith,  according  to  the  law  of  the  land. 

Did  either  court  commit  any  substantial  error?  For  the  pur- 
poses of  this  case,  we  shall  suppose  that  the  plaintiff  in  error  has  so 


378  PARENT   AND    elllLD. 

preserved  his  exceptions  to  all  (luestioned  rulings  of  the  courts  be- 
low, and  so  got  his  case  into  this  court,  that  we  may  hear  and  de- 
termine the  case  upon  its  merits;  but  this  suppovsition  is  extremely 
favorable  to  the  plaintiff  in  error.  Upon  the  merits  of  this  case  we 
think  the  plaintiff  in  error  must  fail.  He  cannot  recover  for  the 
board,  clothing,  etc.,  for  which  he  has  charged.  During  all  the  time 
while  he  was  furnishing  such  board,  etc.,  he  stood  in  loco  parentis 
toward  the  said  Emma  J.  Rogers,  then  Emma  J.  Hill.  They  sus- 
tained the  relation  toward  each  other  of  substantially  parent  and 
child.  When  said  Emma  J.  was  only  seven  years  old,  and  living 
with  her  mother,  Mrs.  Susanna  Hill,  the  plaintiff  married  the  mother 
and  took  the  child  along  with  the  mother  to  live  with  him;  and  from 
that  time  on,  for  about  twelve  years,  the  girl  lived  with  her  mother 
and  the  plaintiff  as  one  of  their  family,  receiving  boarding,  clothing, 
schooling,  etc.,  and  performing  services  as  one  of  the  family  with 
no  thought  or  expectation  on  the  part  of  any  one  that  anybody 
should  give  or  receive  any  other  or  further  compensation  for  these 
mutual  benefits  and  services.  When  the  girl  was  about  nineteen 
years  old,  she  married  the  defendant,  and  soon  afterwards  died. 
The  defendant  having  been  appointed  her  executor,  the  plaintiff 
commenced  this  action  in  the  Probate  Court  against  him,  with  the 
result  aforesaid. 

We  think  the  decisions  of  the  courts  below  were  correct.  We 
think  Mr.  Schouler,  in  his  work  on  Domestic  Relations  (p.  378), 
states  the  law  governing  this  case  very  correctly.  His  language  is 
as  follows:  "  It  is  well  settled  that,  in  the  absence  of  statutes  a  per- 
son is  not  entitled  to  the  custody  and  earnings  of  step-children,  nor 
bound  by  law  to  maintain  them.  Yet,  if  a  step-father  voluntarily 
assumes  the  care  and  support  of  a  step-child,  he  stands  in  loco  pa- 
rentis; and  the  presumption  is  that  they  deal  with  each  other  as 
parent  and  child,  and  not  as  master  and  servant;  in  which  case  the 
ordinary  rules  of  parent  and  child  will  be  held  to  apply,  and  neither 
compensation  for  board  is  presumed  on  the  one  hand,  nor  for  ser- 
vices on  the  other."  We  do  not  think  that  the  plaintiff  is  entitled 
to  recover  in  this  case,  and  hence  the  judgment  of  the  court  below 
must  be  affirmed. 

All  the  justices  concurring.' 


•  Accord,  Livingston  v.  Hammond,  162  Mass.  375. 


PART  III. 

INFANCY. 

Period  of  Infancy. 
THE  STATE  v.  CLARK. 

3  Harr.  (Del.)  557.— 1840. 

The  defendant  was  presented  by  the  grand  jury  for  illegal  voting 
at  the  late  inspector's  election. 

The  presentment  set  forth  these  facts,  to  wit: — That  the  defend- 
ant was  born  on  the  7th  of  October,  A,  D.  1819,  and  voted  at  the 
election  held  on  the  6th  of  October,  1840,  upon  age.  In  his  behalf 
a  motion  was  now  made  to  quash  the  presentment  on  the  ground 
that  it  appeared  from  the  face  of  it  that  the  defendant  was  of  full 
age  at  the  time  he  voted,  and  was,  therefore,  not  guilty. 

Bayard,  C.  J.  Many  persons  suppose  that  the  expression  in  the 
Constitution  relative  to  the  qualifications  of  voters  is,  that  citizens 
between  the  ages  of  twenty-one  and  twenty-two  years  shall  be  en- 
titled to  vote  without  paying  tax ;  and  on  this  the  common,  but  errone- 
ous notion  is,  that  a  man  must  be  in  point  of  fact  actually  within  his 
twenty-second  year  before  he  can  vote.  The  premises  and  conclu- 
sion are  both  wrong.  "  Every  free  white  male  citizen  of  the  age  of 
twenty-one  years,  and  under  the  age  of  twenty-two  years,  having 
resided  as  aforesaid,  shall  be  entitled  to  vote  without  payment  of 
any  tax."  (Const,  art.  4,  sec.  i.)  To  ascertain  when  a  man  is 
legally  "  of  the  age  of  twenty-one  years,"  we  must  have  reference  to 
the  common  law,  and  those  legal  decisions  which  from  time 
immemorial  have  settled  this  matter,  in  reference  to  all  the  import- 
ant affairs  of  life. 

When  can  a  person  make  a  valid  will;  when  can  he  execute  a  deed 
for  land;  when  make  any  contract  or  do  any  act  which  a  man  may 
do,  and  an  infant,  that  is,  a  person  under  the  age  of  twenty-one 
years,  cannot  do?  On  this  question  the  law  is  well  settled;  it  admits 
of  no  doubt.  A  person  is  "of  the  age  of  twenty-one  years  "  the 
day  before  the  twenty-first  anniversary  of  his  birthday. 

It  is  not  necessary  that  he  shall  have  entered  upon  his  birthday, 
or  he  would  be  more  than  twenty-one  years  old.     He  is,  therefore, 

[379] 


380  INFANCY. 

of  age  the  day  before  the  anniversary  of  his  birtli;  anil,  as  the  law- 
takes  no  notice  of  fractions  of  a  day,  he  is  necessarily  of  age  the 
whole  of  the  day  before  his  twenty-first  birthday;  and  upon  any  and 
every  moment  of  that  day  may  do  any  act  which  any  man  may  law- 
fully do.  1  Chit.  Crcn.  Prac.  766.  "It  is  to  be  observed  that  a 
person  becomes  of  age  on  the  first  instant  of  the  last  day  of  the 
twenty-first  year  /wx^  before  the  anniversary  of  his  birth;  thus,  if  a 
person  were  born  at  any  hour  on  the  first  of  January,  A.  D.  1801 
(even  a  few  minutes  before  twelve  o'clock  on  the  night  of  that  day), 
he  would  be  of  fu.i  age  at  the  first  instant  of  the  31st  of  December, 
A.  D.  1821,  although  nearly  forty-eight  hours  before  he  had  actually 
attained  the  full  age  of  twenty-one,  according  to  years,  days,  hours, 
and  minutes;  because  there  is  not  in  law  in  this  respect  any  fraction 
of  a  day;  and  it  is  the  same  whether  a  thing  is  done  upon  one 
moment  of  the  day  or  another." 

On  the  face  then  of  this  presentment,  it  appears  that  Mr.  Clarke 
was  entitled  to  vote  on  the  6th  of  October,  being  on  that  day  of  the 
age  of  twenty-one  years;  and  the  presentment,  showing  no  offence, 
must  be  quashed. 


Voidability  of  Co7itracts} 
Wilde,  J.,  in  OLIVER  v.  HOUDLET. 

13  Mass.  237,  238. — 1816. 

This  case  turns  on  a  question  of  property,  depending  upon  two 
sales  of  cattle,  made  by  the  plaintiff  to  one  A.  J.  S.  G.  Lithgow.  It 
has  been  contended  that  these  sales  were  void  ab  initio^  the  said 
Lithgow  being  a  minor,  not  capable  by  law  of  making  a  valid  con- 
tract. 

Doubtless  an  act  merely  void  may  be  treated  as  a  nullity  by  either 
party,  and  even  by  a  stranger.  Some  acts  of  infants  are  of  this 
description;  and  it  has  been  said  that  all  such  as  are  apparently 
prejudicial  to  his  interests  are  to  be  so  considered.  Thus,  a  grant, 
surrender,  or  lease,  by  an  infant,  without  reservation  of  rent,  have 
been  adjudged  void;  such  acts  being  apparently  to  the  infant's  pre- 
judice. But  in  the  case  of  Zouch  v.  Parsons,''  they  were  held  to  be 
voidable  only;  and  for  reasons  which  seem  very  cogent  and  satis- 
factory. 

'A  valuable  and  exhaustive  critical  treatment  of  the  law  relating  to  infants* 
contracts  is  found  in' 18  Am.  St.  Rep.  pp.  573-724- 
>  3  Burr.  1794;  s.  c,  i  W.  Bl.  575- 


VOIDAP.IT  ITV    OK    Cf^Nl  RACTS.  381 

It  would  be  more  correct  therefore,  to  say,  that  those  acts  of  an 
infant  are  void  which  not  only  apparently,  but  necessarily,  operate 
to  his  prejudice.  The  benefit  of  the  infant  is  the  great  point  to  be 
regarded;  the  object  of  the  law  being  to  protect  his  imbecility  and 
indiscretion  from  injury,  through  his  own  imprudence  or  by  the 
craft  of  others. 

The  general  rule  is,  that  infancy  is  a  personal  privilege,  of  which 
no  one  can  take  advantage  but  the  infant  himself;  and,  therefore  that 
his  contracts,  although  voidable  by  him,  shall  bind  the  person  of  full 
age.  This  rule  seems  to  require  that  all  contracts  of  infants  should 
be  held  voidable,  rather  than  void.  But,  however  this  may  be,  all 
the  books  agree  that  those  which  are  beneficial,  or  have  a  semblance 
of  benefit,  to  the  infant,  are  only  voidable.  Of  this  character  are  all 
sales  made  by  persons  of  full  age  to  infants.  These  have  at  least 
the  semblance  of  benefit  to  the  vendees.  No  case  can  be  found  in 
which  such  a  sale  has  been  held  void,  or  voidable  by  the  vendor,  on 
the  ground  of  the  vendee's  infancy.  Even  a  feme  covert^  whose 
conveyances  and  other  contracts  are  clearly  void,  may  purchase  an 
estate  without  the  consent  of  her  husband;  and  the  conveyance  will 
be  good,  until  avoided  by  him  during  coverture,  or  by  her  after  his 
death.' 

Most  clearly  then  the  sales  under  consideration  are  not  void. 


WEAVER  V.  JONES. 

24  Ala.  420. — 1854. 

Chilton,  C.  J.  Jones  sued  Weaver  in  assumpsit,  for  the  use  and 
occupation  of  a  lot  in  Selma.  It  appears  from  a  bill  of  exceptions, 
which  was  sealed  upon  the  trial,  that  the  plaintiff,  Jones,  while  an 
infant,  had  sold  the  lot,  and  executed  his  bond  for  title  in  the  usual 
form;  after  he  arrived  at  age,  he  disaffirmed  the  contract,  paid 
Weaver  back  the  purchase  money,  with  the  interest,  and  received 
back  his  bond.  Weaver,  in  the  meantime,  had  made  valuable  and 
permanent  improvements  on  the  lot,  in  the  erection  of  a  livery 
stable.  This  suit  is  brought  by  Jones,  to  recover  rent  for  the 
time  Weaver  occupied  the  lot;  and  Weaver  insists  that  he  should 
be  allowed  to  recoup  the  value  of  his  improvements,  which  gave  to 
the  lot  its  principal  yearly  value;  the  rent,  aside  from  such  im- 
provements, being  quite  inconsiderable. 

The  court,   among  other  things,   charged    the   jury  that,   if   the 

'    2  Bl.  Com.  293;  Co.  Lit.  3a. 


382  INFAN'CY. 

plaintiff  (Jones)  was  a  minor  at  the  time  of  selling  the  lot,  and  they 
should  find  that  such  sale  was  not  an  advantageous  one  to  the  plain- 
tiff, then  the  contract  would  be  void,  and  the  damages  could  not  be 
recouped. 

The  counsel  for  the  defendant  in  error  endeavors  to  maintain  the 
correctness  of  this  charge,  upon  the  alleged  ground  that  a  bond 
with  a  penalty,  given  by  an  infant,  is  absolutely  void,  and  that  being 
void,  the  defendant  below  must  be  regarded  in  the  light  of  a  mere 
trespasser,  and  as  such  not  entitled  to  recoup  for  improvements. 

If  this  position  be  correct,  we  think  it  is  very  clear  the  plaintiff, 
Jones,  has  no  standing  in  the  court;  for  the  action  of  assumpsit  will 
not  lie,  in  the  absence  of  a  contract  either  expressed  or  implied; 
and  no  contract  for  the  payment  of  rent  is  implied,  by  law,  as 
against  a  mere  naked  trespasser.  The  owner,  in  such  case,  must 
resort  to  his  action  of  trespass,  to  recover  damages  for  the  tortious 
entry  and  holding  of  the  premises.  True,  there  are  cases  when  the 
owner  of  the  term  may  elect  to  treat  one  who  trespasses  on  him  as 
his  tenant,  after  the  term  expires,  for  otherwise  he  would  be  remedi- 
less. Such  was  the  case  of  Catte7-lin  v.  Spinks,  in  16  Ala.  467.  So, 
also,  in  cases  of  permissive  holding,  as  where  the  party  in  possession 
holds  under  a  verbal  contract  of  purchase,  which  he  repudiates. 
The  case  of  Davidson  v.  Earnest,  in  7  Ala.  817,  furnishes  an  illus- 
tration of  this  latter  class.  See,  also,  Rochester  v.  Pierce,  i  Camp. 
466,  and  Hull  v.  Vaughn,  6  Price  Exchq.  Rep.  157.  If,  however, 
the  bond  in  this  case  be  absolutely  void  — a  mere  nullity  —  and  the 
party  a  mere  trespasser,  the  case  falls  under  neither  of  the  qualifica- 
tions above  stated.  There  would  be  no  demise,  express  or  implied, 
and  no  permissive  holding.  To  entitle  the  plaintiff  below  to  a  re- 
covery, it  is,  therefore,  necessary  to  affirm  the  validity  of  the  bond 
for  some  purpose,  as  amounting  at  least  to  a  permission  to  the  plain- 
tiff in  error  to  occupy. 

But  is  a  bond  for  title,  given  by  an  infant,  an  absolute  nullity? 
The  old  cases,  and  several  elementary  writers  who  follow  them,  main- 
tain the  affirmative  of  the  proposition;  but  we  think  it  clear,  both 
upon  principle  and  the  current  of  modern  cases,  that  it  is  not. 

The  object  of  the  rule  which  enables  an  infant  to  repudiate  his 
contracts,  when  he  arrives  at  full  age,  is  to  furnish  him  a  shield  or 
protection  against  the  improvident  bargains  he  may  enter  into,  re- 
sulting from  presumed  incapacity,  by  reason  of  his  youth,  to  contract. 
It  may  often  happen  that  his  contract  may  prove  a  very  beneficial 
one  to  him,  and  he  may  desire,  when  of  age,  to  affirm  it,  which  he 
could  not  do  if  it  were  void. 

The  better  opinion,  as  maintained  by  the  modern  decisions,  is, 


VOIDABILITY    OF   CONTRACTS.  383 

that  an  infant's  contracts  are  none  of  them  (with  perhaps  one  excep- 
tion) absolutely  void  by  reason  of  non-age-  that  is  to  say,  the  infant 
may  ratify  tliem,  after  he  arrives  at  the  age  of  legal  majority.  Par- 
sons on  Contracts,  224  and  notes;  i  Amer.  Leading  Cases,  103,  104. 
The  rule,  as  recognized  by  the  charge,  that  the  court,  or  (as  in  this 
case)  the  jury,  must  determine  whether  the  contract  was  beneficial 
or  prejudicial  to  the  infant,  and  hold  the  contract  voidable  or  void 
according  to  the  result  of  such  finding,  has  been  rejected  by  many 
of  the  courts  in  modern  times,  as  unsatisfactory  and  unsafe  in  its 
application,  and  as  often  contravening  the  principle  upon  which  it 
was  founded,  namely,  the  benefit  of  the  infant.  It  is  certainly  more 
conducive  to  his  benefit  to  afford  him  the  opportunity  of  affirming, 
when  of  age,  a  contract  which  he  may  determine  to  be  beneficial, 
than  for  the  court  or  jury  to  determine  this  question  for  him. 
15  Wend.  631;  I  J.  J.  Mar.  236;  Parsons  on  Con.,  note  e,  to  page 
244. 

We  must  consider  Weaver  as  holding  possession  of  the  lot  under 
a  contract  for  its  purchase,  which  was  voidable,  and  as  holding  by 
permission  of  Jones,  the  plaintiff,  who  may,  therefore,  treat  him  as 
his  tenant, and  maintain  this  action  of  indebtitatus  assumpsit  for  use 
and  occupation. 

Let  the  judgment  be  reversed,  and  the  cause  remanded.' 

'  "There  is  a  good  deal  of  confusion  in  the  cases  in  regard  to  the  nature  of 
the  contract  entered  into  by  an  infant.  Under  the  early  English  and  American 
cases,  it  was  said  that  the  contracts  of  infants  were  of  three  kinds.  First,  those 
clearly  for  his  benefit,  such  as  contracts  made  for  necessaries,  which  were  said 
to  be  binding  like  any  contract  made  by  two  persons  of  full  age.  Secondly, 
those  which  were  clearly  against  the  interest  of  the  infant;  these  were  said  to  be 
void,  and  there  was  a  third  or  intermediate  class  which  constituted  the  bulk  of 
all  contracts  made  by  infants,  which  might  or  might  not  be  to  his  advantage, 
and  were  voidable;  that  is  to  say,  when  the  infant  came  of  age  he  might  either 
affirm  or  disaffirm  these  contracts. 

The  later  rule,  however,  and  the  rule  which  seems  supported  by  the  weight  of 
authorities,  and  certainly  one  much  more  sound  upon  the  grounds  of  reason,  is 
that  all  contracts  of  an  infant  are  voidable,  except,  first,  the  implied  contract  for 
necessaries,  which  is  binding,  and  secondly,  the  warrant  of  attorney,  and  per- 
haps some  other  powers  of  attorney,  of  an  infant,  which  is  void." — Hollings- 
WORTH,  Law  of  Contracts,  p.  18  (1896). 

"  From  a  careful  examination  of  the  modern  decisions  and  text-writers,  we  are 
satisfied  that  the  following  propositions  may  be  regarded  as  settled:  First,  that 
an  infant's  contracts  for  necessaries  are  as  valid  and  binding  upon  the  infant 
as  the  contracts  of  an  adult,  and  that  such  contracts  cannot  be  disaffirmed,  and 
need  not  be  ratified  before  they  can  be  enforced;  second,  the  contract  of  pn  in- 
fant appointing  an  agent  or  attorney  in  fact,  is  absolutely  void  and  incapable  of 
ratification;  third,  any  contract  that  is  illegal,  by  reason  of  being  against  a  stat- 


384  INFANCY. 


TRUEBLOOD  v.   TRUEBLOOD 

8  Ind.  195. — 1856. 

Perkins,  J.  Bill  in  chancery,  under  the  old  practice,  to  compel 
a  specific  performance,  and  to  set  aside  a  fraudulent  deed.  Bill  dis- 
missed, The  facts  of  the  case,  so  far  as  material  to  its  decision, 
are  as  follows: 

In  1S45,  William  Trueblood  was  an  infant,  and  owner  of  a  piece 
of  land.  At  that  date,  Richard  J.  IVueblood,  the  father  of  said  Wil- 
liam, executed  a  title-bond  to  one  Nathan  Trueblood,  whereby  he 
obligated  himself  to  cause  to  be  conveyed  to  him,  said  Nathan,  the 
piece  of  land  belonging  to  William,  after  the  latter  should  become 
of  age.  The  conveyance  was  to  be  upon  a  stated  consideration. 
The  bond  is  single  —  simply  the  bond  of  Richard  —  and  William  is 
nowhere  mentioned  in  it  as  a  party,  but  his  name  is  signed  with  his 
father's  at  the  close  of  the  condition,  as  may  be  supposed,  in  signifi- 
cation of  his  assent  to  the  execution  of  the  instrument  by  his  father. 
We  shall  so  treat  his  signature  to  the  bond. 

After  William  became  of  age,  it  is  claimed  that  he  ratified  the 
bond,  and  afterwards  sold  and  conveyed  the  land  to  another  —  Rob- 
ert Lockridge  —  who  had  notice,  etc.  This  bill  was  filed  in  order 
to  have  the  deed  to  Lockridge  set  aside,  and  a  conveyance  decreed 
to  Nathan  Trueblood,  pursuant  to  the  terms  of  the  bond. 

The  court  below,  as  we  have  stated,  refused  to  enter  such  a  de- 
cree, and  held,  as  counsel  inform  us,  that  the  bond  was  not  suscep- 
tible of  ratification  by  William  Trueblood;  and  whether  it  was  or 
not  is  the  important  question  in  the  case;  for  if  the  bond  was  not 
susceptible  of  such  ratification,  we  need  not  inquire  into  the  alleged 
facts  which  it  is  claimed  evidence  that  such  an  act  had  been  done. 

As  we  have  seen,  the  bond  is  not,  in  terms,  the  bond  of  William 
Trueblood.  He  could  not,  by  virtue  of  its  express  provisions,  be 
sued  upon  it.  Where  a  father  signs  his  name  to  articles  of  appren- 
ticeship of  his  son,  simply  to  signify  his  assent  to  them,  he  cannot 
be  a  party  to  a  suit  upon  the  articles.     5  Ind.  R.  538. 

If  the  bond,  then,  can  in  any  light  be  regarded  as  the  contract  of 
William  Trueblood,  it  must  be  because  his  father  may  be  considered 
his  agent  in  executing  it.     Can,  then,  an  infant,  after  arriving  at 

ute  or  public  policy,  is  absolutely  void  and  incapable  of  ratification;  fourth,  all 
other  contracts  made  by  an  infant  are  voidable  only,  and  may  be  affirmed  or  dis- 
affirmed by  the  infant  at  his  election  when  he  arrives  at  his  legal  majority. 

"  The  second  proposition  may  not  be  founded  in  solid  reason,  but  it  is  so  held 
by  all  the  authorities." — Buskirk,  J.,  in  Fetrow  v.  Wiseman,  40  Ind.  148,  155, 


VOIDABILITY    OF   CONTRACTS.  385 

age,  ratify  the  act  of  his  agent,  performed  while  he  was  an  infant? 
This  depends  upon  whether  his  appointment  of  an  agent  is  a  void 
or  voidable  act.  If  the  former,  it  cannot  be  ratified  (5  Ind.  R.  353) ; 
if  the  latter,  it  can  be.     Reeves'  Dom.  Rel.  240. 

In  the  first  volume  of  American  Leading  Cases,  3d  ed.,  p.  248 
et  seq.,  the  doctrine  is  laid  down,  as  the  result  of  the  American 
cases  on  the  subject,  that  the  only  act  an  infant  is  incapable  of  per- 
forming, as  to  contracts,  is  the  appointment  of  an  agent  or  attorney. 

Whether  the  doctrine  is  founded  in  solid  reasons,  they  admit, 
may  be  doubted ;  but  assert  that  there  is  no  doubt  but  that  it  is 
law.     See  the  cases  there  collected. 

The  law  seems  to  be  held  the  same  in  England.  In  Doe  v.  Rob- 
erts, 16  M.  &  W.  778,  a  case  slightly  like  the  present,  in  some  re- 
spects, the  attorney,  in  argument,  said,  "  Here  a  tenancy  has  been 
created,  either  by  the  children,  or  by  Hugh  Thomas,  acting  as  their 
agent."  Parke,  B.  replied,  "  That  is  the  fallacy  of  your  argument. 
An  agreement  by  an  agent  cannot  bind  an  infant.  If  an  infant 
appoints  a  person  to  make  a  lease,  it  does  not  bind  the  infant, 
neither  does  his  ratification  bind  him.  There  is  no  doubt  about  the 
law;  the  lease  of  an  infant,  to  be  good,  must  be  his  own  personal 
act."  So,  here,  had  the  bond  been  the  personal  act  of  the  infant, 
he  could  have  ratified  it.  It  would  have  been  simply  voidable.  But 
the  bond  of  his  agent,  or  one  having  assumed  to  act  as  such,  is  void, 
and  not  capable  of  being  ratified.  See  8  Blackf.  345.  The  decree 
below  must,  therefore,  be  affirmed  with  costs. 

GooKiNS,   J.,  having  been  concerned  as  counsel,  was  absent. 

Per  Curiam.     The  decree  is  affirmed  with  costs 


HARDY  V.  WATERS. 

38  Me.  450.— 1853. 

Assumpsit,  on  a  promissory  note,  payable  to  a  minor,  who  was 
under  guardianship.  The  note  was  endorsed  to  the  plaintiff,  by 
a  brother  of  the  payee,  also  a  minor,  being  authorized  by  the  payee 
to  write  his  name  thereon.  Since  this  suit  was  commenced,  the 
guardian  had  approved  of  the  transfer  to  plaintiff. 

The  defence  was,  that  the  note  had  not  been  legally  negotiated) 
and  therefore  the  plaintiff  could  not  maintain  this  action.  The  court 
ruled  otherwise,  and  the  plaintiff  recovered  the  amount  of  the  note. 
Defendant  excepted. 

[DoMF.STic  Relations  —  25.] 


386  INFANCY. 

Shepley,  C.  J.  It  is  admitted  that  an  infant  may  transfer  a 
promissory  note  payable  to  himself  by  indorsement.  It  is  denied 
that  he  can  confer  upon  another  the  power  to  do  it  for  him;  the 
reason  is,  that  an  indorsement  by  an  infant  is  voidable,  while  his 
act  conferring  power  upon  another  to  do  it  for  him  is  void. 

If  the  act  of  transfer  in  this  case  be  voidable  only,  it  is  to  be 
regarded  as  valid  until  avoided;  and  it  can  be  avoided  only  by  the 
infant  or  his  heir  or  personal  representative.  If  the  power  to  in- 
dorse by  another  was  void,  it  could  not  be  ratified,  and  the  plaintiff 
could  acquire  no  legal  interest  in  the  note;  and  the  approval  of  the 
guardian  since  the  commencement  of  the  suit  cannot  aid  him. 

In  the  case  of  Whitney  v.  Dutch.,  14  Mass.  457,  the  right  of  an 
infant  to  empower  another,  otherwise  than  by  an  instrument  under 
seal,  to  do  an  act  for  him,  which  he  might  lawfully  perform  himself, 
was  fully  considered.  It  was  admitted,  if  the  court  were  confined 
to  the  letter  of  the  authorities,  it  must  conclude,  that  the  act  could 
not  be  performed  by  delegated  power. 

Considering  that  the  object  of  the  law  was  to  protect  infants  from 
injury,  and  that  this  would  be  fully  effected  by  regarding  contracts 
so  entered  into  as  voidable  and  not  void,  the  court  came  to  the  con- 
clusion that  there  could  be  no  difference,  upon  principle,  between 
the  ratification  of  a  contract  made  by  an  infant  and  one  made  through 
the  intervention  of  another  person  acting  under  parol  authority 
from  him. 

Changes  in  the  law  respecting  negotiable  paper  are  undesirable, 
and  should  not  be  made  without  strong  reasons  for  them.  The 
decision  in  that  state  was  made,  and  the  rule  of  law  established, 
while  this  state  composed  a  part  of  it.  It  should  not,  after  it  has 
been  so  long  received  as  the  law,  be  abrogated  merely  because  other 
highly  respectable  courts  have  come  to  a  different  conclusion,  es- 
pecially when  it  is  not  perceived  that  it  has  been,  or  is  likely  to  be, 
productive  of  any  injustice  cr  mischief. 

Exceptions  overruled. 

Tenney,  Appleton  and  Rice,  JJ.,  concurred.' 

'  See  also  Hastings  v.  Dollarhide,  24  Cal.  195. 


VOIDABILITY   OF   CONTRACTS.  387 


Mitchell,  J.,  in  COURSOLLE  v.  WEYERHAUSER. 

69  Minn.  328,  332.  —  1897. 

The  rule  is  that  the  act  to  be  ratified  must  be  voidable  merely, 
and  not  absolutely  void;  and  the  question  remains  —  which  to  our 
minds  is  the  most  important  one  in  the  case  —  whether  the  act  of  a 
minor  in  appointing  an  agent  or  attorney  is  wholly  void,  or  merely 
voidable.  Formerly  the  acts  and  contracts  of  infants  were  held 
either  void,  or  merely  voidable,  depending  on  whether  they  were 
necessarily  prejudicial  to  their  interests,  or  were  or  might  be  beneficial 
to  them.  This  threw  upon  the  courts  the  burden  of  deciding  in  each 
particular  case  whether  the  act  in  question  was  necessarily  prejudicial 
to  the  infant.  Latterly  the  courts  have  refused  to  take  this  respon- 
sibility, on  the  ground  that,  if  the  infant  wishes  to  determine  the 
question  for  himself  on  arriving  at  his  majority,  he  should  be  allowed 
to  do  so,  and  that  he  is  sufficiently  protected  by  his  right  of  avoid- 
ance. Hence  the  almost  universal  modern  doctrine  is  that  all  the 
acts  and  contracts  of  an  infant  are  merely  voidable.  Upon  this  rule 
there  seems  to  have  been  ingrafted  the  exception  that  the  act  of  an 
infant  m  appointing  an  agent  or  attorney,  and  consequently  all  acts 
and  contracts  of  the  agent  or  attorney  under  such  appointment,  are 
absolutely  void.  This  exception  does  not  seem  to  be  founded  on  any 
sound  principle,  and  all  the  text-writers  and  courts  who  have  discussed 
the  subject  have,  so  far  as  we  can  discover,  conceded  such  to  be  the 
fact.  On  principle,  we  think  the  power  of  attorney  of  an  infant, 
and  the  acts  and  contracts  made  under  it,  should  stand  on  the  same 
footing  as  any  other  act  or  contract,  and  should  be  considered  void- 
able in  the  same  manner  as  his  personal  acts  and  contracts  are  con- 
sidered voidable.  If  the  conveyance  of  land  by  an  infant  personally, 
who  is  of  imperfect  capacity,  is  only  voidable,  as  is  the  law,  it  is 
difficult  to  see  why  his  conveyance  made  through  an  attorney  of  per- 
fect capacity  should  be  held  absolutely  void.  It  is  a  noticeable  fact 
that  nearly  all  the  old  cases  cited  in  support  of  this  exception  to  the 
general  rule  are  cases  of  technical  warrants  of  attorney  to  appear  in 
court  and  confess  judgment.  In  these  cases  the  courts  hold  that 
they  would  always  set  aside  the  judgment  at  the  instance  of  the 
infant,  but  we  do  not  find  that  any  of  them  go  as  far  as  to  hold  that 
the  judgment  is  good  for  no  purpose  and  at  no  time.  The  courts 
have  from  time  to  time  made  so  many  exceptions  to  the  exception 
itself  that  there  seems  to  be  very  little  left  of  it,  unless  it  be  in  cases 
of  powers  of  attorney  required  to  be  under  seal,  and  warrants  of 
attorney  to  appear  and  confess  judgment  in  court.     Sec  Freeman's 


388  INFANCY. 

note  to  Craig  v.  Van  Bebber,  loo  Mo.  584,  18  Am.  St.  Rep.  629  (s.  c, 
13  S.  VV.  906);  Schouler,  Dom.  Rel.  §  406;  Ewell's  Lead.  Cas.  44,  45, 
and  note;  Bish.  Cont.  §  930;  Mete.  Cont.  (2d  Ed.)  48;  IV/iilney  v. 
Dutch,  14  Mass  457-463;  Bool\.  Mix,  17  Wend.  1 19-131.  Hence, 
notwithstanding  numerous  general  statements  in  the  books  to  the 
contrary,  we  feel  at  liberty  to  hold,  in  accordance  with  what  we  deem 
sound  principle,  that  the  power  of  attorney  from  plaintiff  to  Dorr, 
and  the  deed  to  Brown  under  that  power,  were  not  absolutely  void 
because  of  plaintiff's  infancy,  but  merely  voidable,  and  that  they  were 
ratified  by  him  after  attaining  his  majority. 


AVOIDANCE   OF   CONTRACTS.  389 

Avoidance  of  Contracts, 

I.    Avoidance  During  Minority. 

TOWLE  V.   DRESSER 

73  Me.  252. — 1882. 

Barrows,  J.  Trover  for  a  horse.  The  following  facts  may  be 
regarded  as  established  by  the  testimony  here  reported. 

In  October,  1876,  being  then  minors  aged  respectively  eighteen 
and  sixteen  years,  the  plaintiffs  sold  and  delivered  at  their  own  house 
their  colt  to  the  defendants  residing  in  a  distant  county,  receiving 
therefor  two  promissory  notes  of  one  of  their  townsmen  amounting  to 
two  hundred  dollars,  payable  to  the  defendants  or  bearer,  and  indorsed 
by  one  of  the  defendants.  The  following  summer  one  of  the  notes 
having  become  due  and  remaining  unpaid,  an  attorney  at  law,  em- 
ployed by  the  plaintiffs  with  the  assent  of  their  father,  went  with 
the  notes  which  he  tendered  to  each  of  the  defendants  and  demanded 
the  colt.  The  defendants  refused  to  receive  the  notes  or  return  the 
colt,  and  thereupon  this  suit  was  instituted,  October  9,  1877,  their 
father  appearing  a.?,  prochcin  ami,  never  having  been  appointed  their 
legal  guardian.  The  defendants  severally  pleaded  the  general 
issue,  with  brief  statements  asserting  that  the  sale  was  made  as 
above  to  one  of  them;  that  it  was  never  legally  rescinded  nor  any 
tender  of  the  notes  made  to,  or  legal  demand  for  the  restoration  of 
the  colt  upon  either  of  them,  and  denying  the  refusal  to  return  or 
the  conversion.  The  notes  were  placed  upon  the  clerk's  files  for  the 
use  of  the  defendants  and  their  attorney  notified  of  the  fact.  A  non- 
suit having  been  ordered,  the  question  is,  whether  upon  the  above 
facts  the  action  is  maintainable,  and  this  involves  the  inquiry: 
I.  Whether  minors  can  rescind  an  executed  sale  of  their  personal  prop- 
erty during  their  minority?  2,  Whether  they  can  notify  the  vendee 
of  their  election  to  rescind,  offer  to  return  the  consideration  and 
demand  a  restoration  of  their  property  by  an  agent?  3.  Whether,  if 
the  response  to  such  notification,  offer  and  demand  is  a  simple  refusal 
by  the  vendee  to  accept  the  return  of  the  consideration  and  to 
restore  the  property,  without  objection  on  the  ground  of  want  of 
authority  in  the  agent  to  make  the  demand,  it  would  be  competent 
for  the  jury  to  find  a  waiver  on  the  part  of  the  vendee  of  any  possi- 
ble defect  in  the  demand  on  that  score,  and  a  conversion  by  him 
accordingly. 


390  INFANCY. 

I.  As  to  the  power  of  minors  to  rescind  an  executed  sale  of  their 
personal  property  during  minority  upon  returning  the  consideration 
received.  We  find  no  good  reason  either  upon  principle  or  authority 
to  deny  that  power.  It  is  the  legitimate  use  of  the  shield  with  which 
the  law  covers  their  supposed  want  of  judgment  and  experience,  and 
places  both  parties  in  statu  (]uo  ante,  a  condition  of  things  of  which  it 
would  seem  neither  ought  to  complain.  By  r(  ason  of  the  transitory 
nature  of  personal  property,  to  withhold  his  right  from  the  infant, 
perhaps  for  a  term  of  years,  until  he  became  of  age,  would,  in  many 
cases,  be  to  make  it  utterly  valueless. 

In  support  of  their  denial  of  its  existence,  defendants  rely  upon 
Roofv.  Stafford,  7  Cowen,  179,  and  the  dictum  of  a  former  learned 
justice  of  this  court,  in  Boody  v.  McKcnney,  23  Maine,  525. 

The  case  in  7  Cow.  179,  was  reversed  on  appeal,  Stafford  v.  Roof, 
9  Cowen,  626,  where  it  was  held  that  although  he  could  not  avoid  a 
conveyance  of  land  until  he  became  of  age,  he  might  a  sale  of  chat- 
tels. The  power  is  expressly  recognized  in  Shipman  v.  Norton,  17 
Conn.  483;  Carr  v.  Clough,  26  N.  H.  280,  293. 

And  this  is  the  principle  upon  which  alone  the  numerous  class  of 
cases  proceed  in  which  the  minor  after  he  has  worked  for  a  man  has 
been  allowed  to  repudiate  his  contract  to  labor  for  a  fixed  period  of 
time  at  a  certain  rate  of  wages,  and  to  recover  by  suit  through  the 
intervention  of  a  next  friend  what  his  work  was  fully  worth  without 
regard  to  his  stipulations.  For  illustration,  see  Jiidkins  v.  Walker, 
17  Maine,  38;  Derocher  v.  Continental  Mills,  58  Maine,  217;  Boynton 
V.  Clay,  Id.  236;    Vehue  v.  Pinkham,  60  Maine,  142. 

The  learned  judge  who  uttered  the  dictum  in  Boody  v.  McKenney, 
23  Maine,  525,  would  never  have  recognized  it  as  an  authority  or 
decision  of  the  point.  It  was  purely  a  dictum,  put  forth,  apparently 
on  the  strength  of  the  case  in  7  Cowen,  179.  in  a  discussion  of  the 
decided  cases  for  the  purpose  of  seeing  how  far  the  remarks  in  them 
were  capable  of  being  harmonized  See  Ibid,  p.  523.  Defendants' 
counsel  cannot  expect  us  to  give  it  more  credit  than  he  would  have 
us  give  to  Hardy  v.  Waters,  38  Maine,  450,  against  which  he  so 
stoutly  contends. 

II.  But  this  last-named  case  was,  we  think,  rightly  decided,  and  it 
stamps  as  inaccurate  and  unsound  all  dicta  or  decisions  (if  such  there 
be)  which  hold  all  acts  done  and  contracts  executed  by  an  infant 
through  the  intervention  of  an  agent  void,  and,  on  the  contrary,  rele- 
gates the  appointment  of  agents  (for  certain  purposes  at  least)  by 
them  to  the  class  of  voidable  contracts  to  be  disposed  of  by  the  rules 


AVOIDANCE   OF   CONTRACTS.  39I 

applicable  to  that  class.  And  it  recognizes  the  cardinal  principle 
that  in  relation  to  all  voidable  acts  and  contracts,  infancy  is  a  per- 
sonal privilege  which  no  one  but  the  infant  or  his  legal  representa- 
tive is  entitled  to  assert. 

The  exceptions  must  be  sustained. 
Nonsuit  set  aside.     New  trial  granted. 

Appleton,  C.  J.,  Walton,  Danforth,  Virgin  and  Symonds,  JJ., 
concurred.* 


WELCH  V.  BUNCE  et  al. 

83  Ind.  382.— 1882. 

HowK,  J.  In  this  case  the  appellees,  the  plaintiffs  below,  sued 
the  appellant  as  defendant,  in  a  complaint  of  a  single  paragraph,  of 
which  the  following  is  a  copy: 

"  Comes  now  Nancy  Bunce,  by  her  next  friend,  Samuel  Bunce,  and 
Samuel  Bunce,  and  complaining  of  the  defendant  says:  That  on 
the  22d  day  of  January,  1878,  she  was  the  owner  of  the  following 
real  estate  in  Huntington  county,  Indiana,  to  wit:  \Here  folloius  a 
iUscriptio7i  of  the  laiid.^  which  was  her  sole  and  separate  estate, 
having  been  inherited  by  her  from  her  deceased  father,  Andrew 
Branstrator;  that  on  said  day  plaintiff  and  her  husband,  Samuel 
Bunce,  joining  with  her,  made  a  conveyance  of  said  real  estate  to 
defendant,  and  delivered  said  deed  to  said  grantee ;  that  at  the  time  of 
executing  said  conveyance  this  plaintiff  was  a  minor,  under  the  age 
of  twenty-one  years,  and  is  yet;  that  on  the  25th  day  of  October, 
1879,  she  repudiated  and  disaffirmed  said  conveyance;  that  said  con- 
veyance was  duly  recorded  in  deed  record  book  41,  page  313,  of  the 
records  of  Huntington  county,  on  the  istday  of  May,  1879;  that  said 
Samuel  Bunce  is  the  husband  of  said  Nancy  Bunce ;  wherefore  she  asks 
that  said  deed  be  set  aside,  and  the  title  to  said  land  be  quieted  in 
her,  and  for  possession  of  the  property  in  suit,  to  preserve  the  rents 
and  profits,  costs,  and  all  proper  relief." 

To  this  complaint  the  appellant  demurred  upon  the  following 
grounds  of  objection:  "  i.  The  complaint  does  not  state  facts  suffi 
cient  to  constitute  a  good  cause  of  action;  and,  2.  Defect  of  parties 
plaintiffs;  Samuel  Bunce  is  joined  with  his  wife."  This  demurrer 
was  overruled  by  the  court,  and  to  this  ruling  the  appellant  excepted 
and  refused  to  plead  further.  Thereupon  the  court  rendered  judg- 
ment for  the  appellee  Nancy  Bunce,  as  prayed  for  in  the  complaint. 

*  In  Lansing  v.  R.  R.,  126  Mich.  663,  it  was  held  that  an  infant  could  not  dis- 
affirn>  until  majority,  a  coiuraci  of  compromise  of  a  claim  for  personal  injuries. 


392  INFANCY. 

In  this  court  the  appellant  has  assigned  as  errors  the  following  de- 
cisions of  the  Circuit  Court: 

1.  In  overruling  his  demurrer  to  appellee's  complaint;  and, 

2.  In  overruling  his  motion  to  require  the  appellees  to  substitute  a 
responsible  next  friend,  or  to  remove  Samuel  Bunce  as  such  next 
friend,  on  the  showing  made  by  the  appellant. 

Under  the  first  of  these  alleged  errors  the  principal  question  pre- 
sented for  decision  is  this:  Can  an  infant  disaffirm  his  or  her  con- 
veyance of  real  estate  during  infancy,  or  before  he  or  she  arrives  at 
the  full  and  lawful  age  of  twenty-one  years? 

This  action  was  commenced  on  the  3rd  of  November,  1879;  and 
it  was  alleged  in  the  complaint  then  filed  that  the  appellee  Nancy 
Bunce  was  then  "  a  minor,  under  the  age  of  twenty-one  years,"  and 
that  she  had  disaffirmed  her  conveyance  of  the  real  estate  to  the 
appellant,  on  the  25th  of  October,  1879,  preceding  the  commence- 
ment of  this  suit.  It  is  clear,  therefore,  that  the  question  above 
stated  is  fairly  presented  for  decision  by  the  demurrer  to  the  com- 
plaint. We  are  of  the  opinion  that  the  question  stated  must  be  an- 
swered in  the  negative.  It  would  seem  to  be  settled  by  the  decisions 
of  this  court,  that  an  infant  cannot  disaffirm  or  avoid  his  or  her 
conveyance  of  real  estate,  simply  on  the  ground  of  infancy,  which  is 
the  only  ground  relied  upon  in  the  case  at  bar,  until  his  or  her  arrival 
at  majority.  Chapman  v.  Chapman,  13  Ind.  396;  Miles  v.  Lingerman, 
24  Ind.  385;  Law  v.  Long,  41   Ind.  586. 

For  the  appellees'  counsel,  as  we  understand  their  argument,  con- 
cede that  the  rule  of  law,  on  the  subject  under  consideration,  was 
formerly  as  we  have  stated  it.  But  counsel  claim  l!hat  this  rule  was 
changed  by  the  provisions  of  section  10  of  the  Civil  Code  of  1852,  and 
that  this  section  has  been  overlooked  by  this  court  in  its  more  recent 
decisions  on  the  subject  of  the  rule.  This  section  10  provides  as 
follows:  "  When  an  infant  shall  have  a  right  of  action,  such  infant 
shall  be  entitled  to  maintain  suit  thereon,  and  the  same  shall  not  be 
delayed  or  deferred  on  account  of  such  infant  not  being  of  full  age." 
2  R.  S.  1876,  p.  37;  section  12,  Civil  Code  of  1881;  section  255, 
R.  S.  1881. 

We  are  of  the  opinion,  however,  that  the  section  quoted  has  no 
application  to  the  question  under  consideration,  and,  therefore, 
makes  no  change  in  the  rule  of  law  in  relation  thereto.  An  infant 
has  no  right  of  action  as  to  lands  conveyed  away  by  him  or  her, 
simply  on  the  ground  of  infancy,  until  such  conveyance  has  been  dis- 
affirmed or  avoided.  An  infant's  conveyance  of  real  estate  is  not  void, 
but  is  merely  voidable ;  and  it  cannot  be  avoided  or  disaffirmed,  simply 
on  the  score  of  infancy,  until  the  infant  has  arrived  at  majority.     It 


AVOIDANCE   OF   CONTRACTS. 


393 


seems  to  us,  therefore,  that  the  facts  stated  in  the  complaint,  in  the 
case  now  before  us,  showed  clearly  that  the  appellee  Nancy  Bunce 
had  no  right  or  cause  of  action  aganist  the  appellant,  at  the  com- 
mencement of  this  suit,  and  that  the  demurrer  to  the  complaint,  for 
the  want  of  sufficient  facts,  ought  to  have  been  sustained. 

Some  other  points,  of  minor  importance,  are  noticed,  rather  than 
discussed,  by  the  appellant's  counsel.  We  deem  it  unnecessary  for 
us  to  consider  or  decide  these  points,  as  the  judgment  must  be 
reversed  for  the  reasons  already  given. 

The  judgment  is  reversed,  with  costs,  and  the  cause  is  remanded 
with  instructions  to  sustain  the  demurrer  to  the  complaint,  and  for 
further  proceedings  not  inconsistent  with  this  opinion.' 

'  "  The  deed  of  an  infant  cannot  be  avoided  until  he  becomes  of  age,  though  he 
may  enter  and  take  the  profits  in  the  meantime.  But  it  seems  that  a  sale  and 
manual  delivery  of  chattels  by  an  infant  may  be  avoided  while  under  age.  Bac. 
Ab.  Infancy  and  Age,  i;  Com.  Dig.  Enfant,  c.  4,  5,  g;  F.  N.  B.  192;  Roof  v. 
Stafford,  7  Cowen,  179;  9  Id.  626.  Some  of  the  old  books  say  that  an  infant  may 
avoid  his  deed  by  entry  before  he  comes  of  age;  but  that  is  not  the  doctrine  of 
the  present  day.  He  may  enter  while  within  age  and  take  the  profits  until  the 
time  arrives  when  he  has  a  legal  capacity  to  aflSrm  or  disaffirm  the  deed,  but  the 
deed  is  not  rendered  utterly  void  by  the  entry;  it  may  still  be  confirmed  after  he 
arrives  at  full  age." — Bronson,  J.,  in  Bool  v.  Mix,  17  Wend.  (N.  Y.)  119,  132  (1837). 


394  INFANCY. 

2.  Avoidance  after  Minority. 

GOODNOW  V.  EMPIRE  LUMBER  CO. 

31  Minn.  468.  —  1884. 

GiLFiLLAN,  C.  J.  November  27,  1857,  Elizabeth  M.  Hamilton, 
then  a  married  woman  and  owner  of  certain  real  estate  in  the  city  of 
Winona,  conveyed  the  same,  her  husband  joining  in  the  deed,  to  the 
defendant  Huff,  under  whom  the  other  defendant  claims.  Mrs.  Hamil- 
ton was  born  April  21,  1842.  She  died  December  16,  1867,  and  her 
husband  died  November  10,  1874.  Plaintiffs  are  their  children,  Mary, 
born  March  31,  1859,  and  F.ugenia,  January  29,  1863.  They  bring 
the  action  to  avoid  the  conveyance,  because  of  the  minority  of  Eliza- 
betn  M.  Hamilton  when  she  executed  it.  Plaintiffs  gave  notice  to  the 
lumber  company  of  their  intent  to  disafifirm  the  conveyance,  March 
22,  1883.  Treating  this  as  a  sufficient  act  of  disaffirmance  in  case 
they  then  had  the  right  to  disaffirm  —  and  it  is  not  material  whether 
it  was  or  not,  for  the  bringing  of  the  action,  which  was  sufficient, 
immediately  followed, —  there  elapsed  between  the  execution  of  the 
deed  and  its  disaffirmance  twenty-five  years  and  four  months.  The 
disability  of  infancy  on  the  part  of  the  infant  grantor  ceased  April  21, 
1863,  and,  as  the  real  estate  was  owned  by  her  at  the  time  of  her 
marriage,  her  disability  from  coverture,  so  far  as  affected  her  right 
to  reclaim,  hold  and  control  the  property,  ceased  August  i,  1866, 
when  the  General  Statutes  (1866)  went  into  effect;  so  that  for  four 
years  and  eight  months  before  she  died,  she  was  free  of  the  disability 
of  infancy,  and  for  one  year  and  four  and  a  half  months,  she  was 
practically  free  of  the  disability  of  coverture.  During  the  latter 
period,  at  least,  she  was  capable  in  law  to  disaffirm  the  deed,  if  she 
had  the  right  to  do  so;  and  if  she  was  required  to  exercise  the  right 
within  a  reasonable  time  after  her  disability  ceased,  the  time  was 
running  for  that  period.  The  youngest  of  the  plaintiffs  became  of 
age  January  29,  1881,  so  that,  even  if  the  period  of  minority  of  plain- 
tiffs were  to  be  excluded,  (and  we  doubt  if  it  should  be),  there  is  to 
be  added  at  least  two  years  and  two  months  to  the  time  which  had 
elapsed  when  the  grantor  died,  making  the  time  three  years  and 
over  six  months. 

The  main  question  in  the  case  is,  must  one  who,  while  a  minor,  has 
conveyed  real  estate,  disaffirm  the  conveyance  within  a  reasonable 
time  after  the  minority  ceases,  or  be  barred?  Of  the  decided  cases 
the  majority  are  to  the  effect  that  he  need  not,  (where  there  are  no  cir- 
cumstances other  than  the  lapse  of  time  and  silence),  and  that  he  is 
not  barred  by  mere  accjuiescence  for  a  shorter  period  than  that 
prescribed   in   the   Statute  of   Limitations.     The   following  are   the 


AVOIDANCE   OF   CONTRACTS.  395 

principal  cases  so  decided:  Vaughan  v.  Par?-,  20  Ark.  600;  Boody 
V.  McKen/iey,  23  Me.  517;  Davis  v.  Dudley,  70  Me.  236;  Prout  v. 
Wiley,  28  Mich.  164;  Youse  v.  Norcum,  12  Mo.  549;  Norcum  v.  Gaty, 
19  Mo.  65;  Peterson  v.  Z«//6,  24  Mo.  541;  Baker  v.  Kennett,  54  Mo. 
82;  ^«//^  V.  Ca;-.  J/^z/-.  Ry.  &=  Dock  Co.,  56  Md.  202;  Hale  v.  Ctv- 
rish,  8  N.  H.  374;  Jackson  v.  Carpenter,  11  Johns.  539;  Voorhies  v. 
Voorhies,  24  Barb.  150;  Mc Murray  v.  Mc Murray,  66  N.  Y.  175; 
Lessee  of  Drake  v.  Ramsay,  5  Ohio,  252;  Cresinger  v.  Lessee  of 
Welsh,  15  Ohio,  156;  Lrvine  v.  Lrvine,  9  Wall.  617;  Ordinary  v. 
Wherry,  i  Bailey,  28. 

On  the  other  hand,  there  are  many  decisions  to  the  effct  that  mere 
acquiescence  beyond  a  reasonable  time  after  the  minority  ceases 
bars  the  right  to  disaffirm,  of  which  cases  the  following  are  the 
principal  ones:  Holmes  v.  Blogg,  8  Taunt.  35;  Dublin  &^  W.  Ry.  Co. 
V.  Black,  ^  Exch.  181;  Thomasson  v.  Boyd,  13  Ala.  419;  Delano  v. 
Blake,  II  Wend.  85;  Bostwickv.  Atkins,  3  N.  Y.  53;  Chapin  v.  Shafer, 
49  N.  Y.  407;  Jones  v.  Butler,  30  Barb.  641;  A7/>/(?  v.  Beebe,  6  Conn. 
494;  Wallace  v.  Lewis,  4  Harr.  75.  80;  Hastings  v.  Dollarhide,  24 
Calif.  195;  6'r^/'/  v.  Buchanan,  11  Humph.  467;  Hartman  v.  Kendall,  4 
Ind.  403;  Bigelow  v.  Kinney,  3  Vt.  353;  Richardson  v.  Boright,  9  Vt. 
368 ;  Harris  v.  Cannon,  6  Ga.  382  ;  Ct'/t'  v.  Pennoyer,  14  111.  158 ;  Black  v. 
Hills,  36  111.  376;  Robinson  v.  Weeks,  56  Me.  102;  Z////^  v.  Duncan, 
9  Rich.  (S.  C.)  Law,  55. 

The  rule  holding  certain  contracts  of  an  infant  voidable,  (among 
them  is  conveyance  of  real  estate),  and  giving  him  the  right  to 
affirm  or  disaffirm  after  he  arrives  at  majority,  is  for  the  protection 
of  minors,  and  so  that  they  shall  not  be  prejudiced  by  acts  done 
or  obligations  incurred  at  a  time  when  they  are  not  capable  of  deter- 
mining what  is  for  their  interest  to  do.  For  this  purpose  of  protection 
the  law  gives  them  an  opportunity,  after  they  have  become  capable 
of  judging  for  themselves,  to  determine  whether  such  acts  or  obliga- 
tions are  beneficial  or  prejudicial  to  them,  and  whether  they  will 
abide  by  or  avoid  them.  If  the  right  to  affirm  or  disaffirm  extends 
beyond  an  adequate  opportunity  to  so  determine  and  to  act  on  the 
result,  it  ceases  to  be  a  measure  of  protection,  and  becomes,  in  the 
language  of  the  court  in  Wallace  v.  Lewis,  "  a  dangerous  weapon 
of  offence,  instead  of  a  defence."  For  we  cannot  assent  to  the 
reason  given  in  Boody  v.  McKenney  (the  only  reason  given  by 
any  of  the  cases  for  the  rule  that  long  acquiescence  is  not  proof 
of  ratification),  "  that  by  his  silent  acquiescence  he  occasions  no 
injury  to  other  persons,  and  secures  no  benefits  or  new  rights  to  him- 
.5elf.  There  is  nothing  to  urge  him  as  a  duty  to  others  to  act 
speedily."     The  existence  of  such  an  infirmity  in  one's  title  as  the 


39^  INFANCY. 

right  of  another  at  liis  pleasure  to  defeat  it,  is  necessarily  prejudicial  to 
it ;  and  the  longer  it  may  continue,  the  more  serious  the  injury.  Such 
a  right  is  a  continual  menace  to  the  title.  Holding  such  a  menace  over 
the  title  is,  of  course,  an  injury  to  the  owner  of  il;  one  possessing 
such  a  right  is  bound,  in  justice  and  fairness  towards  the  owner  of 
the  title,  to  determine  without  delay  whether  he  will  exercise  it. 
The  right  of  a  minor  to  disaffirm  on  coming  of  age,  like  the  right  to 
disaffirm  in  any  other  case,  should  be  exercised  with  some  regard  to 
the  rights  of  others, —  with  as  much  regard  to  those  rights  as  is  fairly 
consistent  with  due  protection  to  the  interests  of  the  minor. 

In  every  other  case  of  a  right  to  disaffirm,  the  party  holding  it  is 
required,  out  of  regard  to  the  rights  of  those  who  may  be  affected  by 
its  exercise,  to  act  upon  it  within  a  reasonable  time.  There  is  no 
reason  for  allowing  greater  latitude  where  the  right  exists  because 
of  infancy  at  the  time  of  making  the  contract.  A  reasonable  time 
after  majority  within  which  to  act  is  all  that  is  essential  to  the 
infant's  protection.  That  ten,  fifteen  or  twenty  years,  or  such  other 
time  as  the  law  may  give  for  bringing  an  action,  is  necessary  as  a 
matter  of  protection  to  him,  is  absurd.  The  only  effect  of  giving 
more  than  a  reasonable  time  is  to  enable  the  mature  man,  not  to  cor- 
rect what  he  did  amiss  in  his  infancy,  but  to  speculate  on  the  events 
of  the  future — a  consequence  entirely  foreign  to  the  purpose  of  the 
rule,  which  is  solely  protection  to  the  infant.  Reason,  justice  to 
others,  public  policy,  (which  is  not  subserved  by  cherishing  defective 
titles),  and  convenience,  require  the  right  of  disaffirmance  to  be 
acted  upon  within  a  reasonable  time.  What  is  a  reasonable  time  will 
depend  on  the- circumstances  of  each  particular  case,  and  may  be 
either  for  the  court  or  for  the  jury  to  determine.  Where,  as  in  this 
case,  there  is  mere  delay,  with  nothing  to  explain  or  excuse  it,  or 
show  its  necessity,  it  will  be  for  the  court.  Cochran  v.  Taker,  14 
Minn.  293  (385);  Derosia  v.  W.  &=  St.  P.  R.  Co.,  18  Minn.  119  (133). 
Three  years  and  a  half,  the  delay  in  this  case  (excluding  the  period 
of  plaintiffs'  minority),  after  the  time  within  which  to  act  had  com- 
menced to  run,  was  prima  facie  more  than  a  reasonable  time,  and 
prima  facie  the  conveyance  was  ratified. 

Order  reversed. 


Strong,  J.,  in  SIMS  v.  EVERHARDT. 

102  U.  S.  300,  309. — 1880. 

The  question   now  is,  whether  Mrs.  Sims  did  disaffirm  her  deed 
within  a  reasonable  time  after  she  attained  her  majority.'     What  is 


Mrs.  Sims  disaffirmed  her  deed  about  one  month  after  she  was  divorced. 


AVOIDANCE   OF  CONTRACTS,  397 

a  reasonable  time  is  nowhere  determined  in  such  a  manner  as  to  fur- 
nish a  rule  applicable  to  all  cases.  The  question  must  always  be 
answered  in  view  of  1  he  peculiar  circumstances  of  each  case.  State  v. 
F/aisted,  43  N.  H.  413;  Jenkins  v.  Jenkins,  12  Iowa,  195,  and  num- 
erous other  cases.  It  must  be  admitted  that  generally  the  dis- 
affirmance must  be  within  the  period  limited  by  the  Statute  of 
Limitations  for  bringing  an  action  of  ejectment.  A  much  less  time 
has  in  some  cases  been  held  unreasonable.  It  is  obvious  that  delay 
in  some  cases  could  have  no  justification,  while  in  others  it  would  be 
quite  reasonable. 

Now,  in  this  case,  though  there  was  no  disaffirmance  for  nearly 
twenty-one  years  after  Mrs.  Sims  attained  her  majority,  there  were 
very  remarkable  reasons  for  the  delay,  sufficient,  in  our  opinion,  to 
excuse  it.  When  the  deed  was  made  she  was  laboring  under  a  double 
disability, —  infancy  and  coverture.  Even  if  her  deed  and  that  ,of  her 
husband  had  not  conveyed  his  marital  right  to  the  possession  and 
enjoyment  of  the  land,  she  would  have  been  under  no  obligation, 
imposed  by  the  Statute  of  Limitations,  to  sue  until  both  the  disa- 
bilities had  ceased;  that  is,  until  after  1870.  It  is  an  acknowledged 
rule  that  when  there  are  two  or  more  co-existing  disabilities  in  the  same 
person  when  his  right  of  action  accrues,  he  is  not  obliged  to  act  until 
the  last  is  removed.  2  Sugden,  Vendors,  103,  482;  Mercer's  Lessee 
V.  Sheldon,  1  How.  37.  This  is  the  rule  under  the  Statute  of  Limi- 
tations. But  Mrs.  Sims  could  not  sue  until  after  her  divorce,  and 
until  the  right  the  husband  acquired  by  his  marriage  terminated. 
And  had  she  given  notice  during  her  coverture  of  disaffirmance  of 
her  deed,  it  was  in  the  power  of  her  husband  to  disaffirm  her  dis- 
affirmance. 2  Bishop,  Married  Women,  sec.  392.  Giving  notice, 
therefore,  which  was  all  she  could  do,  would  have  been  a  vain  thing. 
The  law  does  not  compel  the  performance  of  things  that  are  vain. 
Mr.  Bishop,  in  his  work  to  which  we  have  referred,  says  that  if  an 
infant,  who  is  also  a  married  woman,  makes  an  instrument  voidable 
because  of  her  infancy,  the  disability  of  coverture  enables  her  to 
postpone  the  act  of  avoidance  to  a  reasonable  time  after  the  co- 
verture is  ended.  Sec.  516.  In  support  of  this  he  refers  to  Dodd  v. 
Benthal,  4  Heisk.  (Tenn.)  601,  and  Matherson  v.  Davis,  2  Coldw. 
(Tenn.  )  443.  These  cases  certainly  sustain  the  rule  stated  in  the 
text.  In  the  former  it  was  decided  that  an  infant,  who  is  also  a 
married  woman,  has  the  option  to  dissent  from  her  deed  within  a 
reasonable  time  after  her  coverture,  though  her  coverture  may  con- 
tinue more  than  twenty  years.  And  if  this  were  not  so,  the  disa- 
bility of  coverture,  instead  of  being  a  protection  to  the  wife,  as  the 
law  intends  it,  would  be  the  contrary.     We  have  found  no  decision 


39*^  INFANCY. 

that  is  in  conflict  with  this  doctrine,  and  no  dicta  even,  except 
those  in  Scranton  v.  Stewart.^  And  why  should  the  rule  not  be  thus? 
The  person  who  takes  a  deed  from  an  infant/<?;//^  covert  knows  that 
she  is  not  sui  Juris,  and  that  she  will  be  under  the  control  of  her  hus- 
band while  the  coverture  lasts.  He  is  bound  to  know,  also,  that 
she  has  the  disability  of  infancy.  He  assumes,  therefore,  the  risk 
of  attending  both  those  disabilities. 

But  the  continued  coverture  of  Mrs.  Sims,  after  she  attained  full 
age,  is  not  the  onl}'^  circumstance  of  importance  to  the  inquiry  whether 
she  disaffirmed  her  deed  within  a  reasonable  time.  The  circum- 
stances under  which  the  deed  was  made  are  to  be  considered.  There 
is  evidence  that  she  was  constrained  by  her  husband  to  execute  the 
deed;  that  his  conduct  toward  her  was  abusive,  violent,  and  threat- 
ening, in  order  to  induce  her  to  consent  to  the  sale;  that  she  was 
intimidated  by  him;  that  a  look  from  him  would  make  her  do  almost 
aiiything,  and  that  she  was  in  a  weak  and  nervous  condition.  It  is 
not  strange  that  a  woman  bound  to  such  a  husband  should  delay 
during  her  coverture  disaffirming  a  contract  which  he  had  forced 
her  to  make. 

Add  to  this,  that  she  had  very  little  opportunity  to  disaffirm  until 
after  her  divorce.  Before  she  had  reached  her  majority  she  removed 
to  another  state,  and  never  returned  to  the  neighborhood  of  the 
property  to  reside.  Between  1848  or  1849  and  1870  she  made  but 
two  visits  to  Laporte,  both  on  account  of  sickness  or  the  death  of  a 
relative,  and  neither  visit  was  prolonged  beyond  three  days.  It  is 
not  a  case,  therefore,  of  standing  by  after  she  became  of  age  and 
seeing  her  property  in  the  enjoyment  of  another. 

And  again,  she  never  did  any  act  after  her  deed  was  made  and 
after  she  became  of  age,  expressive  of  her  consent  to  it  or  implying 
an  affirmance  of  the  contract.  The  most  that  is  alleged  against  her 
is  that  she  was  silent  during  her  coverture.  But  silence  is  not  neces- 
sarily acquiescence. 

We  are  aware  that  the  decisions  respecting  the  disaffirmance  of  an 
infant's  deed  are  not  in  entire  harmony  with  each  other.  While  it 
is  generally  agreed  that  the  infant  to  avoid  it  must  disaffirm  it 
within  a  reasonable  time  after  his  majority  is  attained,  they  differ  as 
to  what  constitutes  disaffirmance  and  as  to  the  effect  of  mere  silence. 
Where  there  is  nothing  more  than  silence,  many  cases  hold  that  an 
infant's  deed  may  be  avoided  at  any  time  after  his  reaching  majority 
until  he  is  barred  by  the  Statute  of  Limitations,  and  that  silent 
acquiescence  for  any  period  less  than  the  period  of  limitation  is  not 

'  52  Ind.  68. 


AVOIDANCE   OF   CONTRACTS.  399 

a  bar.  Such  was  in  effect  the  ruhng  in  Irvine  v.  Irvine,  9  Wall.  617. 
See  also  Proutv.  Wiley,  28  Mich.  164,'  a  well-considered  case,  and 
Lessee  of  Drake,  v.  Ramsey,  5  Ohio,  251.  But,  on  the  other  hand, 
there  appears  to  be  a  greater  number  of  cases  which  hold  that 
silence  during  a  much  less  period  of  time  will  be  held  to  be  a  con 
firmation  of  the  voidable  deed.  But  they  either  rely  upon  Holmes 
V.  Blogg,  8  Taunt.  35,  which  was  not  a  case  of  an  infant's  deed,  or 
subsequent  cases  decided  on  its  authority,  or  they  rest  in  part  upon 
other  circumstances  than  mere  silent  acquiescence,  such  as  standing 
by  without  speaking  while  the  grantee  has  made  valuable  improve- 
ments, or  making  use  of  the  consideration  for  the  deed.  We  think 
the  preponderance  of  authority  is  that,  in  deeds  executed  by  infants, 
mere  inertness  or  silence,  continued  for  a  period  less  than  that 
prescribed  by  the  Statute  of  Limitations,  unless  accompanied  by 
affirmative  acts,  manifesting  an  intention  to  assent  to  the  convey- 
ance, will  not  bar  the  infant's  right  to  avoid  the  deed.  And  those 
confirmatory  acts  must  be  voluntary.  As  we  have  said,  one  who 
is  under  a  disability  to  make  a  contract  cannot  confirm  one  that  is 
voidable,  or,  what  is  the  same  thing,  cannot  disaffirm  it.  An  affirm- 
ance or  a  disaffirmance  is  in  its  nature  a  mental  assent,  and  neces- 
sarily implies  the  action  of  a  free  mind,  exempt  from  all  constraint 
of  disability. 

'  "  Upon  this  question  of  the  affirmance  of  a  deed  executed  during  minority,  by 
mere  lapse  of  time  or,  in  other  words,  by  mere  silence  or  acquiescence  for  any 
particular  period  of  time,  after  the  minor  has  attained  his  majority,  it  is  suffi- 
cient, without  citing  and  analyzing  authorities,  to  say  that,  by  the  great  weight 
of  authority,  both  English  and  American,  such  delay  or  acquiescence,  without 
any  affirmative  act  indicating  an  intention  to  affirm,  or  tending  to  mislead  the 
grantee  into  a  belief  of  such  intention,  or  any  circumstances  of  equitable  estop- 
pel, such  as  standing  by  and  seeing  improvements  made  or  money  expended,  or 
a  sale  of  the  property  to  another,  without  asserting  his  claim  (or  some  such  spe- 
cial circumstance),  will  not  operate  as  an  affirmance  or  confirmation  of  the  deed 
executed  during  minority,  nor  prevent  the  minor  from  disaffirming  it  and  re- 
claiming the  land  at  any  time  allowed  him  by  the  statute  of  limitation  for  bring- 
ing an  action.  The  question,  in  such  a  case,  is  substantially  but  a  question  of 
the  time  within  which  an  action  may  be  brought;  and  the  legislature  having 
fixed  the  time  which  to  them  seemed  reasonable  for  this  purpose  it  is  not  within 
the  power  of  the  judiciary  to  change  it.  But  when  facts  exist  which  create  an 
equitable  estoppel,  as  above  intimated,  or  some  other  special  circumstances  such 
as  are  above  alluded  to,  so  that  the  question  ceases  to  be  one  merely  of  the  length 
or  lapse  of  time,  it  may  perhaps  be  very  proper  to  hold,  as  many  cases  have  held, 
that  the  infant  should  manifest  his  purpose  to  disaffirm  within  a  reasonable  time; 
and  what  should  be  held  to  be  a  reasonable  time  might  depend  much  upon  the 
special  circumstances  of  the  particular  case. 

"  This  distinction  reconciles  nearly,  though  not  quite,  all  of  the  decisions  upon 
this  subject." — Pt-out  v.  IViley,  28  Mich.  164,  167. 


400  INFANCY. 

In  view  of  these  considerations,  our  conclusion  is  that  Mrs.  Sims, 
the  complainant,  having  been  a  feme  covert  until  1870,  and  never 
liaving  done,  during  her  coverture,  any  act  to  confirm  the  deed 
which  she  made  during  her  infancy,  could  effectively  disaffirm  it  in 
1S70,  when  she  became  a  free  agent,  and  that  her  notice  of  dis- 
affirmance and  her  suit  avoided  her  deed  made  in  1847. 


NORTH  WESTERN  R'Y  v.  M'MICHAEL. 
THE  B.  L.  AND  C.   J.   RY.  v.  PILCHER. 

5  ExcH.  (Eng.)  114. — 1850. 

The  case  of  the  Birkenhead^  Lancashire  and  Cheshire  y^unction  Rail- 
way Company  v.  Filcher,  was  an  action  of  debt  for  calls.  The  declara- 
tion stated  that  the  defendant  was  and  still  is  the  holder  of  divers,  to 
wit,  180,  shares  in  the  said  company,  and  being  such  holder,  was  and 
still  is  indebted  to  the  said  company  in  a  large  sum  of  money,  to  wit, 
^300,  in  respect  of  a  call  made  on  the  said  shares;  whereby,  etc., 
an  action  hath  accrued  to  the  plaintiffs,  by  virtue  of  the  companies 
clauses  consolidation  act,  1845,  and  the  Birkenhead,  Lancashire  and 
Cheshire  Railway  act,  1846,  to  demand  from  the  defendant  the  said 
sum,  etc. 

Plea,  that  at  the  time  when  he,  the  defendant,  first  became  and 
was  the  holder  of  the  said  shares,  and  at  the  time  of  the  making  and 
entering  into  by  him,  the  defendant,  of  the  contracts,  by  the  force, 
virtue  and  in  pursuance  of  which  the  debts,  causes  of  action  and  lia- 
bilities, and  each  and  every  of  them,  in  the  said  declaration  men- 
tioned, have  accrued  to  the  plaintiffs  and  been  incurred  by  the 
defendant,  as  in  the  said  declaration  is  alleged,  and  at  the  time  of 
the  making  and  entering  into  by  him,  the  defendant,  of  the  contracts 
by  the  force,  virtue,  and  in  pursuance  of  which  the  plaintiffs  claim 
to  be  entitled  by  law  to  make  the  said  call  upon  the  defendant,  and 
to  demand  and  have  the  amount  of  the  same  of  and  from  the  defend- 
ant, in  manner  and  form  as  in  the  said  declaration  is  alleged,  he,  the 
defendant,  was  an  infant,  within  the  age  of  twenty-one  years. — 
Verification. 

Replication,  that  the  defendant,  at  the  time  when  he  first  became 
and  was  the  holder  of  the  said  shares  in  the  said  declaration  men- 
tioned and  at  the  time  of  the  making  and  entering  into  by  him,  the 
defendant,  of  the  said  contracts,  and  every  of  them,  in  the  said 
plea  mentioned,  was  of  the  full  age  of  twenty-one  years,  and  not 


AVOIDANCE   OF   CONTRACTS.  4OI 

within  the  age  of  twenty-one  years,  to  wit,  of  the  age  of  nineteen 
years.     Conclusion  to  the  country  and  issue  thereon. 

A  verdict  was  entered  for  the  defendant  on  this  issue,  pursuant  to 
leave  reserved  at  the  trial. 

In  the  Railway  v.  AF Michael,  the  plea  to  the  first  count  was  in- 
fancy; and  "  that  the  defendant  has  never  ratified  or  confirmed  the 
said  a;pplication  grant,  entry  and  proprietorship,  or  any  or  either 
of  them,  but  the  same  have,  and  each  and  every  of  them  hath, 
hitherto  always  remained  wholly  unratified  and  unconfirmed.  That 
the  defendant  has  not  at  any  time  derived  any  profit,  benefit  and  ad- 
vantage whatsoever  from  the  said  shares,"  etc. — Demurrer. 

The  judgment  of  the  court  in  both  of  the  above  cases  was,  on  the 
nth  of  January,  185 1,  delivered  by 

Parke,  B.  The  question  to  be  decided  in  the  case  of  the  North 
Western  Raihvay  Company  v.  M' Michael  is,  whether  the  first  plea  (the 
second  to  the  second  count  being  identical)  contains  a.  good  prima 
facie  answer  to  the  declaration.  If  the  effect  of  a  person  actually 
becoming  a  shareholder  in  a  railway  company,  by  original  agreement 
with  the  company,  ought  to  be  treated  as  a  mere  contract  with  those 
to  whom  the  proposal  was  made,  for  a  future  partnership  with  the 
persons  who  should  be  afterwards  fixed  upon  by  them,  and  to  con- 
tribute to  the  capital  for  carrying  on  the  undertakings  in  a  certain 
proportion,  such  a  contract  could  not  be  presumably  beneficial  to  an 
infant,  and  would  be,  as  all  mere  contracts,  except  for  necessaries, 
are,  not  binding  on  the  infant  at  all;  and  the  simple  fact  that  the 
defendant  at  the  time  he  made  the  contract  was  an  infant,  would  be 
an  answer  to  an  action  upon  it.  The  same  may  be  said  of  an  exe- 
cuted contract  for  the  purchase  of  a  mere  personal  chattel.  But  in 
the  cases  already  decided  upon  this  subject,  infants,  having  become 
shareholders  in  railway  companies,  have  been  held  liable  to  pay  calls 
made  whilst  they  were  infants.  Cork  and  Brandon  Railway  Cofnpajiy 
V.  Cazenove,  10  Q.  B.  935 ;  Leeds  and  Thirsk  Railway  Company  v. 
Fearnley,  4  Exch  26.  They  have  been  treated,  therefore,  as  per- 
sons in  a  different  situation  from  mere  contractors,  for  then  they 
would  have  been  exempt;  but,  in  truth,  they  are  purchasers  who 
have  acquired  an  interest,  not  in  a  mere  chattel,  but  in  a  subject  of 
a  permanent  nature,  either  by  contract  with  the  company,  or  pur- 
chase or  devolution  from  those  who  have  contracted,  and  with  certain 
obligations  attached  to  it,  which  they  were  bound  to  discharge,  and 
have  been  thereby  placed  in  a  situation  analogous  to  an  infant  pur- 
chaser of  real  estate,  who  has  taken  possession  and  thereby  becomes 
liable  to  all  the  obligations  attached  to  the  estate,  for  instance,  to 
pay  rent  (21  Hen.  6,  31  B.)  in  the  case  of  a  lease  rendering  rent,  and 
[Domestic  Relations  —  26.] 


402  INFANCY. 

to  pay  a  fine  due  on  the  admission,  in  the  case  of  a  copyhold  to  which 
an  infant  has  been  admitted,  {^Evelyn  v.  Chichester,  3  Burr.  1717), 
unless  they  have  elected  to  waive  or  disagree  to  the  purchase  alto- 
gether, either  during  infancy  or  after  full  age,  at  either  of  which 
times  it  is  competent  for  an  infant  to  do  so.  Bac.  Abr.  "  Infancy 
and  Age,"  (i)  5;  Co.  Litt.  380.  This  court  accordingly  held,  in 
The  Newry  and  Enniskillen  Railway  Company  v.  Coombc,  3  Exch.  565, 
that  an  infant  who  did  avoid  the  contract  of  purchase  during  mi- 
nority, was  not  liable  to  pay  any  calls.  In  the  subsequent  case  of 
The  Leeds  and  Thirsk  Railway  Company  v.  Fearnley,  4  Id.  26,  where 
there  had  been  no  waiver  or  repudiation  of  the  purchase,  we  held, 
in  conformity  with  the  decision  of  the  Queen's  Bench,  that  the 
defendant  continued  liable.  We  cannot  say  that  we  concur  in  the 
opinion  of  that  court,  as  reported  in  11  Jur.  802,  and  10  Q.  B.  935, 
if  it  goes  to  the  full  extent  that  all  shareholders,  including  infants, 
are  by  the  operation  of  the  railway  acts  made  absolutely  liable  to 
pay  calls.  No  doubt  the  statute  not  only  gave  a  more  easy  remedy 
against  the  holder  of  shares  by  original  contract  with  the  com- 
pany, for  calls,  and  also  attached  the  liability  to  pay  calls  to 
the  shares,  so  as  to  bind  all  subsequent  holders  ;  but  we  con- 
sider, as  we  have  before  said,  that  there  are  implied  excep- 
tions in  favor  of  infants  and  lunatics  in  statutes  containing  general 
words  {Stowell  v.  Lord  Zouch,  Plowd.  364),  though  that  depends,  of 
course,  on  the  intent  of  the  legislature  in  each  case  (see  Wilmof  s 
Notes  of  Opinions  and  Judgments,  p.  194,  The  Earl  of  Buckinham- 
shire  v.  Drury),  and  that  this  statute  did  not  mean,  by  general  words, 
to  deprive  infants  of  the  protection  which  the  law  gave  them,  against 
improvident  bargains.  Under  this  statute,  therefore,  our  opinion 
is,  that  an  infant  is  not  absolutely  bound,  but  is  in  the  same  situation 
as  an  infant  acquiring  real  estate,  or  any  other  permanent  interest; 
he  is  not  deprived  of  the  right  which  the  law  gives  every  infant,  of 
waiving  and  disagreeing  to  a  purchase  which  he  has  made;  and  if  he 
waives  it,  the  estate  acquired  by  the  purchase  is  at  an  end,  and  with 
it  his  liability  to  pay  calls,  though  the  avoidance  may  not  have  taken 
place  till  the  call  was  due.  (See  Bac.  Abr.  "  Infancy  and  Age," 
[i]  8).  The  law  is  clearly  laid  down  in  Co.  Litt.  2b:  "  An  infant 
or  minor  hath,  without  consent  of  any  other,  capacity  to  purchase, 
for  it  is  intended  for  his  benefit;  and,  at  his  full  age,  he  may  either 
agree  thereunto  and  perfect  it,  or,  without  any  cause  to  be  alleged, 
waive  or  disagree  to  the  purchase;  and  so  may  his  heirs  after  him, 
if  he  agreed  not  thereunto  after  his  full  age."  A  shareholder,  in- 
deed, in  a  railway  company,  or  other  chartered  corporation,  is  not 
thereby  made  a  holder  of  real  estate:  Bligh  v.  Brent,  2  Y.  &  C.  268; 


AVOIDANCE   OF   CONTRACTS.  403 

for  all  real  estates  are  vested  in  the  corporate  body,  not  in  the  indi- 
viduals composing  it;  but  the  shareholder  acquires,  on  being  regis- 
tered, a  vested  interest  of  a  permanent  character,  in  all  the  profits 
arising  from  the  land,  and  other  effects  of  the  company,  and,  when 
registered,  may  be  deemed  a  purchaser  in  possession  of  such  interest, 
and  is  placed  in  a  position  ;'.nalogous  to  that  of  a  purchaser  in  pos- 
session of  real  estate. 

When,  therefore,  there  is  nothing  but  the  simple  fact  of  infancy 
pleaded  to  an  action  for  calls  against  a  purchaser  who  has  been  regis- 
tered, and  thereby  becomes  a  shareholder  in  a  subject  of  a  permanent 
character,  the  interest  continuing  to  be  vested  in  the  infant,  and  the 
consequent  obligation  to  pay,  the  simple  plea  of  infancy  is,  according 
to  the  above  authorities,  insufficient;  and  on  that  ground  we  think 
the  plea  in  the  case  of  The  Birkenhead  Railway  Company  v.  Filcher, 
which  we  have  to  consider  with  this,  bad,  notwithstanding  the  ver- 
dict, and,  therefore,  are  of  opinion  that  the  rule  should  be  abso- 
lute to  enter  up  judgment  for  the  plaintiffs  in  that  case,  notwith- 
standing the  verdict  entered  for  the  defendant. 

But  the  case  of  The  North  Western  Railway  Company  v.  M' Miehael 
contains,  besides  the  averment  of  infancy  at  the  time  of  the  contracts 
for  the  shares,  other  special  facts  —  not  a  waiver  by  the  infant,  but 
averments  that  he  had  derived  no  advantage  from  the  shares,  and 
had  never  ratified  or  confirmed  the  purchase.  This  case  is  one  of 
more  difficulty. 

The  law  upon  this  subject  is  to  be  found  as  early  as  21  Hen.  6, 
31  B,  where  it  was  held  by  Newton,  J.,  that,  if  an  infant  lessee  takes 
possession,  he  is  bound  to  pay  the  rent;  and  in  conformity  with  that 
ruling  was  the  decision  in  a  case  reported  in  Brownlow,  120,  as 
Ketley  s  Case;  Cro.  Jac.  320,  as  Relsey's  Case;  2  Bulst.  69,  as  Kirton 
v.  Elliott;  and  in  Roll.  Abr.  731,  as  Kettle  v.  Eliot.  The  case  is 
most  fully  reported  in  Brownlow.  It  was  an  action  of  debt  for 
rent;  the  defendant  pleaded  his  infancy  at  the  time  of  the  lease 
made,  in  bar;  and  it  was  argued,  on  demurrer  to  the  plea,  that  the 
defendant  should  be  charged  because  by  the  lease  made  he  is  become 
a  purchaser,  and  so  to  be,  in  judgment  of  law,  as  a  man  of  full  age. 

We  collect  that  the  principle  upon  which  the  court  decided  was, 
that,  every  purchase  being  presumably  for  the  benefit  of  the  infant, 
his  purchase  vested  the  estate  in  him  on  entry  and  taking  possession, 
and  rendered  him  liable  to  the  obligations  attached  to  it,  until  he 
disagreed  to  the  estate,  and  thereby  caused  the  conveyance  to  be 
inoperative,  and  avoided  the  obligation  to  pay  rent.  In  referring 
to  this  case,  the  passage  in  Bac.  Abr.  "  Infancy,"  (I)  8,  treats  the 
infant  as  being  bound  by  reason  of  acquiescence  after  full  age.     How 


404  INFANCY. 

that  could  be  collected  from  the  reports  of  the  case  i.;  not  clear;  and 
so  Lord  EUeuborough,  in  Bay/is  v.  Dinclcy,  3  M.  iJs:  S.  481,  intimates 
an  opinion  that  a  lease  is  ecjuivocal,  whether  for  the  benefit  of  the 
infant  or  not,  and  that,  if  he  continues  a  possessor  after  age,  he 
adopts  it;  and  this  was  a  part  of  the  argument  for  the  defendant  at 
the  bar.  l>ut  it  seems  to  us  to  be  the  sounder  principle,  that,  as  the 
estate  vests,  as  it  certainly  does,  the  burden  upon  it  must  continue 
to  be  obligatory  until  a  waiver  or  disagreement  by  the  infant  takes 
place,  which,  if  made  after  full  age,  avoids  the  estate  altogether, 
and  revests  it  in  the  party  from  whom  the  infant  purchased;  if  made 
within  age,  suspends  it  only,  because  such  disagreement  may  be 
again  recalled  when  the  infant  attains  his  majority. 

But  then  arises  a  question  of  difficulty,  whether  the  fact  that  this 
particular  purchase  was  a  disadvantageous  one,  is  an  answer,  the 
estate  still  being  vested  in  the  infant.  We  are  disposed  to  think 
that  the  plea  does  not  sufficiently  state  that  the  contract  was  a  losing 
one,  or  that  the  shares  were  not  worth  what  the  defendant  agreed 
to  pay,  which  they  well  might  be,  though  the  defendant  himself  had 
actually  made  no  profit  by  them;  but  supposing  the  averment  to  be 
sufficient  in  that  respect,  we  still  think  the  plea  bad. 

This  question  appears  to  have  been  discussed  in  the  case  0/  Ketley, 
as  reported  in  Bulstrode,  Haughton,  J.,  expressing  an  opinion,  that 
if  the  lease  was  for  an  acre  at  ^100  per  annum,  and  the  infant  occupy 
and  enjoy  it,  he  is  to  be  charged  with  the  rent,  he  being  here  taken 
to  be  a  purchaser;  but  Dodderidge  said,  that  if  a  greater  rent  was 
reserved  than  the  land  was  worth,  that  then,  peradventure,  the 
infant  should  not  be  charged.  This  opinion  is  more  strongly 
expressed  in  the  report  in  Erownlow.  This  is  certainly  a  point  of 
some  nicety;  but  the  question  may  be  asked,  why,  in  such  a  case, 
does  not  the  infant  disagree  to  and  avoid  the  purchase,  and  so  get  rid 
of  the  obligation?  and  is  it  reasonable,  that  he  should  retain  the  estate 
and  prevent  the  owner  from  having  any  use  of  it,  and  not  be  liable 
to  the  burthen,  though  disproportionate?  It  may  be  answered,  that 
whilst  he  is  an  infant  he  is  incompetent  to  decide  whether  he  ought 
to  waive  the  purchase  or  not,  and  in  the  meantime,  he  ought  to  be 
at  liberty,  or  his  guardian  for  him,  to  get  rid  of  the  liability,  by 
showing  that  it  was  a  prejudicial  contract.  But  if  so,  such  a  plea 
would  not  be  good  if  the  infant  had  attained  his  majority,  for  then, 
clearly,  he  ought  to  disclaim  it,  and  thereby  give  back  the  estate; 
and  to  make  such  a  plea  good,  where  there  is  no  disclaimer  averred, 
it  ought  to  appear  that  the  infant  is  not  yet  of  age.  The  plea,  as 
it  stands,  is  by  no  means  free  from  doubt.  We  think,  however,  the 
more  reasonable  view  of  the  case  is,  that  the  infant,   even  in  the 


AVOIDANCE  OF  CONTRACTS.  405 

case  of  a  lease  which  is  disadvantageous  to  him,  cannot  protect 
himself  if  he  has  taken  possession,  and  has  not  disclaimed, —  at  all 
events,  unless  he  still  be  a  minor.  We  think  that  the  defendant  is  in 
a  situation  analogous  to  that,  unless  he  disclaims  the  interest,  and  so 
avoids  the  transaction  altogether.  He  cannot  keep  the  interest,  and 
prevent  the  company  from  having  it,  and  dealing  with  it  as  their 
own,  without  being  liable  to  bear  the  burden  attached  to  it.  For 
these  reasons  we  think  the  plea  is  bad,  and  there  must  be  judgment 
for  the  plaintiffs. 

Judgment  for  the  plaintiffs. 


3.    What  Constitutes  Avoidance. 

SINGER  MANUFACTURING  COMPANY  v.  LAMB. 

81  Mo.  221. — 1883. 

Martin,  C.  This  was  a  suit  to  foreclose  a  mortgage  conveying 
640  acres  of  land,  and  was  instituted  against  the  mortgagor  and  all 
other  persons  interested  in  the  land  by  conveyance  under  him.  The 
controversy  which  comes  before  us,  relates  to  only  eighty  acres  of 
the  mortgaged  land,  claimed  by  Isaac  N.  Lamb,  who  is  the  appellant, 
from  the  decree  of  foreclosure  as  to  this  parcel.  The  pleadings  were 
sufficient  to  embrace  the  issues  contained  in  the  evidence,  and  need 
not  be  recited. 

On  the  14th  day  of  February,  1876,  W.  W.  Chenault  executed  and 
delivered  to  the  plaintiff  a  mortgage  on  the  whole  640  acres.  At  this 
time  he  was  a  minor,  under  the  age  of  twenty-one  years.  On  the 
26th  day  of  July,  1876,  while  he  was  still  a  minor,  he  executed  and 
delivered  to  one  Leroy  Moore,  a  warranty  deed  to  eighty  acres 
of  the  mortgaged  tract  for  a  consideration  of  $350.  On  the  17th  day 
of  November,  1876,  said  Moore,  by  warranty  deed,  conveyed  the 
same  parcel  of  eighty  acres  to  Isaac  N.  Lamb,  defendant,  for  a  con- 
sideration of  $400.  On  the  25th  day  of  March,  1879,  and  after  the 
mortgagor  had  attained  his  majority,  he  executed  and  delivered  to 
the  defendant.  Lamb,  a  quit-claim  deed  for  the  same  parcel  of  eighty 
acres.  On  the  2nd  day  of  April,  1880,  the  mortgagor  executed  and 
delivered  to  plaintiff  a  deed  affirming  the  mortgage  deed  as  to  all  the 
land  conveyed  by  it. 

The  deed  made  by  the  mortgagor  to  Leroy  Moore,  while  he  was 
still  a  minor,  could  not  constitute  a  disaffirmance  of  the  mortgage 
deed  previously  made  during  his  minority.  If  his  quit-claim  deed 
to  the   defendant   Lamb,   after  he    had    reached    his   mijority,   was 


406  INFANCY. 

tffective  in  disaffirming  the  mortgage  deed,  as  to  the  land  in  contro- 
versy, then  the  subsequent  deed  of  affirmance  of  the  mortgage  deed, 
as  to  the  same  land,  could  have  no  effect  in  giving  it  to  the  plaintiff 
or  preserving  it  in  its  security.  Thus  the  sole  question  necessary 
for  us  to  consider  is,  whether  the  quit-claim  deed  operated  as  a  dis- 
affirmance of  the  mortgage  deed  as  to  this  parcel  of  land.  This  is 
the  only  point  presented  by  counsel  on  both  sides. 

The  deed  of  a  minor  is  not  void,  but  only  voidable,  after  he  reaches 
his  majority.  Peterson  v.  Laik,  24  Mo.  541;  ///////  v.  Corondelet,  etc., 
56  Mo.  202.  The  right  to  disaffirm  may  be  exercised  by  his  heirs  and 
representatives  within  the  time  permitted  to  him  for  doing  the  act. 
///.,  etc.,  Co.  v.  Bonner,  75  111.  315.  It  requires  no  affirmative  act 
to  continue  its  validity,  but  only  an  absence  of  any  disaffirming  acts. 
It  remains  valid  in  all  respects,  like  the  deed  of  an  adult,  until  it  has 
been  disaffirmed  by  the  maker,  after  reaching  his  majority.  The 
ancient  doctrine  which  required  the  disaffirming  act  to  be  of  as  high 
and  solemn  a  character  as  the  act  disaffirmed  has  no  place  in  modern 
law.  The  disaffirming  act  need  take  no  particular  form  or  expres- 
sion. Allen  V.  Poole,  54  Miss.  323;  White  \.  Flora,  2  Overton  (Tenn.) 
426;  Phillips  V.  Green,  5  T.  B.  Monroe,  344.  The  deed  of  a  minor 
may  be  avoided  by  acts  and  declarations  disclosing  an  unequivocal 
intent  to  repudiate  the  binding  force  and  effect  of  it  as  a  valid  instru- 
ment. If  the  minor  after  reaching  his  majority,  has  expressly  repu- 
diated his  deed,  there  remains  nothing  for  construction.  But  when 
the  disaffirmance  proceeds  from  the  acts  of  the  minor,  after  reaching 
majority,  they  must,  in  their  nature,  imply  a  repudiation  of  the 
voidable  instrument.  If  they  are  consistent  with  the  continued  exist- 
ence of  such  instrument,  there  is  no  disaffirmance,  and  the  deed 
remains  unaffected.  Leite}idorfer  \ .  Hempstead,  18  Mo.  269;  ///.  Land 
Co.  V.  Beem,  2  111.  App.  390;  Eagle  Fire  Co.  v.  Lefit,  6  Paige,  635; 
McGan  v.  Marshall,  7  Humph.  121. 

In  applying  this  controlling  principle,  it  has  been  held,  that  an 
absolute  conveyance  by  a  minor  is  necessarily  avoided  by  a  subse- 
quent absolute  conveyance  of  the  same  land,  after  majority,  to  a 
third  person.  Youse  v.  Norcotns,  12  Mo.  550;  Norcum  v.  Sheahan, 
21  Mo.  25;  Jackson  v.  Carpenter,  11  Johns.  539;  Jackson  v. 
Burchin,    14    Johns.    123.*       The    effect    of    the    disaffirming    act 


•  "The  deed  of  an  infant  is  voidable,  and  must  be  avoided  before  the  action 
will  lie;  but  when  properly  avoided  no  other  thing  is  necessary  to  be  done  before 
bringing  suit.  The  necessity  for  the  infant  to  make  entry  before  giving  the 
deed  of  avoidance,  or  before  bringing  suit,  does  not  exist  in  this  state.  Title  by 
descent,  and  our  mode  of  transferring  title  by  deed,  are  regulated  by  statute. 
The  old  common-law  doctrine  of  feoffment  with  livery  of  seizin  does  not  consti- 


AVOIDANCE   OF   CONTRACTS.  407 

must  depend  greatly  upon  the  nature  and  eifect  of  the  act 
claimed  to  have  been  disaffirmed.  It  has  been  held  that  a  sub- 
sequent mortgage,  after  majority,  does  not  necessarily  avoid  a 
prior  one  made  during  minority.  McGan  v.  Marshall,  7  Humph. 
121.  Two  deeds  to  different  persons,  purporting  to  convey  the 
absolute  title  to  a  parcel  of  land,  cannot  stand  together  any  more 
than  two  bodies  can  occupy  the  same  space.  They  are  necessarily 
inconsistent.  But  this  is  not  necessarily  the  case  with  two  mort- 
gages. The  second  one  takes  effect  on  the  equity  of  redemption,  and 
there  may  be  value  enough  in  the  real  estate  to  satisfy  both.  And 
upon  the  same  reasoning  it  has  been  held,  that  a  subsequent  deed 
purporting  simply  to  convey  "  all  the  undivided  moiety  of  all  those 
certain  lots,"  would  not  operate  as  a  disaffirmance  of  a  prior  mort- 
gage on  the  same  property  made  by  the  grantor  during  minority. 
It  was  held  that  the  obvious  intent  of  such  a  conveyance,  in  the 
absence  of  any  expression  to  the  contrary,  was  to  vest  the  title  in 
the  grantor,  subject  to  the  prior  mortgage.  Palmer  v.  Miller,  25 
Barb.  399.  It  has  been  held,  that  a  subsequent  conveyance,  with 
covenants  of  warranty,  would  be  inconsistent  with  a  prior  mortgage, 
and  would  operate  as  a  disaffirmance  of  it.  Dixon  v.  Merritt,  21 
Minn.  196.  But,  however  the  law  may  be  in  these  cases  noticed  by 
me  for  illustration,  I  am  convinced  that  a  subsequent  quit-claim 
deed  cannot,  either  on  principle  or  authority,  be  accepted  as  a  dis- 
affirmance of  a  prior  mortgage.  The  two  instruments  are  consistent 
with  each  other,  and  can  stand  together.  The  quit-claim  purports 
to  convey  only  the  estate  remaining  in  the  grantor  at  the  time  of 
its  execution.  In  operating  on  this  estate  as  it  existed,  it  carried 
it  to  the  grantee  subject  to  the  mortgage.  The  right  to  disaffirm 
the  mortgage  was  a  personal  privilege  of  the  grantor,  and  could  not 
be  considered  as  an  inherent  part  of  the  title  transferred.  Hoyle  v. 
Stowe,  2  Dev.  &  Bat.  (Law)  320.  It  could  not  be  regarded  as  passing 
to  an  assignee,  in  the  absence  of  express  language  to  that  effect,  so 

tute  any  part  of  our  law  of  conveyancing.  Our  registry  laws  supply  their  place, 
and  furnish  the  notoriety  of  transfer  intended  to  be  given  by  that  ancient  mode 
of  passing  title;  and  the  making  and  recording  of  the  second  deed  in  this  case 
was  entirely  sufficient.  How.  St.  Ch.  216,  §§  5652,  5657;  i  Pars.  Cont.  (3rd  ed.) 
pp.  373,  374;  Eagle  Fire  Co.  v.  Lent,  6  Paige,  635;  Cresinger  v.  Welch,  15  Ohio, 
192;  Jackson  V.  Carpenter,  11  Johns.  539;  Jackson  v.  Burchin,  14  Johns.  124;  Hoyle 
V.  Stowe,  2  Dev.  &  B.  (Law),  320;  Tucker  v.  Aloreland,  10  Pet.  58;  Bingham  on  In- 
fancy, 60;  Dixon  V.  Merritt,  21  Minn.  196;  McGan  v.  Marshall,  7  Humph.  121 ; 
Peterson  v.  Laik,  24  Mo.  541;  Drake  v.  Ramsay,  5  Ohio,  252;  Hastings  v.  Dollar- 
hide,  24  Cal.  195;  Pitchers.  Laycock,  7  Ind.  398;  Laws  1881,  p.  385;  Crane  v.  Reeder, 
21  Mich.  82;  Proutv.  Wiley,  28  Mich.  164." — Haynes  v.  Bennett,  53  Mich.  15,  17 
H884). 


408 


INKAN'CV. 


long  as  the  grantor  remained  in  being  to  exercise  it  himself.  Neither 
do- 1  perceive  how  a  deed  which  is  entirely  consistent  with  the  mort- 
gage, and  does  not  in  its  nature  or  language  purport  to  disaffirm  it, 
can  be  construed  as  sufficient  to  carry  to  the  grantee,  the  personal 
privilege  of  the  grantor  to  disaffirm  it,  in  the  absence  of  apt  words 
indicating  an  intention  to  convey  or  surrender  the  privilege.  The 
fact  that  the  grantee  in  the  quit-claim  had  actual,  as  well  as  con- 
structive, knowledge  of  the  existence  of  the  mortgage,  and  paid  no 
valuable  consideration  for  the  quit-claim,  could  add  nothing  to  the 
strength  of  his  position;  and  for  that  reason  not  be  considered. 
Our  opinion  is  that  the  decree  was  without  error  and  should  be 
affirmed.     It  is  so  ordered. 

All  concur,  except  Norton  and  Sherwood,  JJ.,  absent. 


CHAPIN  V.  SHAFER  et  al. 

49  N.  Y.  407. — 1872. 

The  action  was  brought  to  recover  possession  of  a  horse. 
Defendants  denied  plaintiff's  title  and  claimed  title  in  themselves. 

Peckham,  J.  One  George  Chapin,  an  infant,  being  indebted  to 
the  defendants  for  the  balance  of  an  account  for  three  suits  of 
clothes,  one  for  himself  and  two  for  others,  gave  them  a  chattel 
mortgage  upon  a  horse,  to  be  void  in  case  he  paid  $110  in  ninety 
days  from  the  20th  of  January,  1868.  On  the  same  day  he  sold  the 
horse  to  this  plaintiff  and  delivered  it  to  her.  He  refused  to  deliver 
the  horse  on  the  mortgage  to  the  defendants.  When  the  mortgage 
was  due,  the  defendants  took  the  horse  from  plaintiff's  possession, 
and  she  brought  this  action  therefor.  In  August  thereafter,  directly 
after  George  Chapin  became  of  age,  he  ratified  the  bill  of  sale  to 
plaintiff  by  writing  indorsed  thereon. 

******** 

Assuming  that  the  mortgage  is  voidable  only,  then  the  mortgagor 
had  a  right  to  avoid  it  at  any  time  before  he  arrived  at  age,  and 
within  a  reasonable  time  thereafter,  by  any  act  which  evinced  that 
purpose  [Boolv.  Mix,  17  Wend.  119;  Stafford  v.  Jloof,  supra;  State 
V.  Flaisted,  43  N.  H.  413),  and  an  unconditional  sale  of  the  property 
is  such  an  act. 

I  think  the  sale  to  this  plaintiff  on  the  same  day  the  mortgage  was 
executed,  and  the  delivery  of  the  horse  to  her,  was  such  a  sale. 

True,  the  terms  of  the  sale  were  all  the  vendor's  "  right,  title  and 
interest,"  in  the  property,  but  afterwards  came  a  covenant  "  to  war- 


AVOIDANCE    or   CONTRACTS.  409 

rant  and  defend  the  sale  of  said  goods  and  chattels,  hereby  made 
unto  the  said  Eliza,  against  all  and  every  person  whomsoever." 

The  bill  of  sale  embraced  many  other  chattels  of  the  vendor,  and 
these  words  therein  were  obviously  intended  to  convey  the  chattel? 
absolutely.  Taking  the  whole  instrument  together,  it  was  an  uncon- 
ditional sale  with  warranty.  Such  is  its  manifest  purpose.  The 
covenant  of  warranty  so  in  substance  speaks.  The  cases  referred  to 
by  the  appellants'  counsel  are  all  cases  of  real  estate,  where  the 
rules  of  construction  are  different.  In  sales  of  personal  property, 
warranty  of  title  is  always  implied ;  not  so  as  to  real  estate. 

The  mortgage  is  thus  absolutely  avoided. 

Again,  the  ratification  of  the  bill  of  sale  after  the  infant's  arrival 
at  age  was  for  a  like  purpose,  treating  it  as  a  "  bill  of  sale  and 
assignment  "  of  the  property.  The  purpose  to  ratify  this  and  to  re- 
scind the  other  is  plain;  no  particular  form  of  words  was  necessary. 
This  avoided  the  mortgage.  It  was  thus  made  void.  The  defendants' 
authority  for  taking  the  horse  was  gone.  The  defence  was  thereby 
struck  out.  I  incline  to  think  this  operated  to  make  the  defendants 
trespassers  from  the  beginning  in  taking  the  horse.  Their  title  was 
never  perfected.  Before  it  ripened,  it  was  extinguished  by  this 
dissent. 

The  order  should  be  affirmed  and  judgment  absolute  for  plaintiff. 

All  concur  except  Fclger,  J.,  not  voting. 

Judgment  accordingly. 


4.    Avoidance  In  Part. 

WEED  V.   BEEBE  ET  AL. 

21  Vt.  495. — 1849. 

Appeal  from  the  Court  of  Chancery. 

The  Court  of  Chancery  decreed,  that  the  defendants  pay  to  the 
orator  the  amount  of  the  purchase  money  of  the  premises  remaining 
unpaid,  or  surrender  the  premises;  from  which  decree  the  defend- 
ants appealed. 

Poland,  J.  The  facts  in  this  case,  as  shown  by  the  bill,  answers 
and  evidence,  seem  to  be  substantially  the  following.  On  the  17th 
day  of  February,  1843,  the  orator  contracted  to  sell  to  Beebe  and 
Orcutt  certain  premises  in  the  town  of  Charleston,  of  which  he  was 
the  owner,  for  the  sum  of  $300,  — $200  of  which  was  to  be  paid  by 
building  a  barn  and  finishing  a  house  for  the  orator,  and  $100  to  be 


4'0  INFANCY. 

paid  in  money,  or  by  taking  up  a  note  for  that  sum,  which  John 
M.  Beebe,  father  of  Willard  M.,  held  against  Jedediah  Skinner;  and 
on  the  same  day  the  orator  executed  a  deed  of  the  premises  to  Wil- 
lard M.  Beebe,  and  Beebe  and  Orcutt  executed  to  the  orator  a  written 
obligation  for  the  payment  of  the  $300,  agreeably  to  their  contract. 
Beebe  and  Orcutt,  in  pursuance  of  their  contract,  went  on  and  per- 
formed, or  nearly  performed,  the  labor,  which  was  to  be  in  payment 
of  $200  toward  the  purchase,  but  neglected  and  refused  to  pay  the 
remainder  of  the  purchase  money.  Orcutt  having  absconded  from 
the  state,  and  being  wholly  insolvent,  the  orator  commenced  his  suit 
against  Willard  M.  Beebe,  for  the  recovery  of  the  $100,  returnable 
to  the  June  Term  of  Orleans  County  Court,  1844;  to  which  action 
the  said  Willard  M.  appeared  and  pleaded,  that,  at  the  time  of  the 
execution  of  the  deed  and  contract  aforesaid,  he  was  a  minor,  under 
the  age  of  twenty-one  years,  and,  having  established  that  fact,  he 
defeated  a  recovery  by  the  orator  against  him  for  said  sum.  After 
the  determination  of  that  suit,  and  after  the  said  Willard  M.  became 
of  full  age,  and  on  the  4th  day  of  September,  1845,  the  said  Willard 
M.  conveyed  the  premises  in  question  to  Samuel  S.  Lang  —  Lang  hav- 
ing full  notice  of  the  non-payment  of  the  said  $100  of  the  purchase- 
money,  and  that  Willard  M.  Beebe  had  avoided  payment  of  it  on  the 
ground  of  infancy.  Lang,  at  the  time  he  received  the  deed  from 
Willard  M.  Beebe,  executed  his  notes,  for  the  sum  of  $130,  to  John 
M.  Beebe,  and  also  executed  a  mortgage  of  the  premises  to  John  M. 
Beebe,  to  secure  the  same.  The  orator  also  executed  a  quit-claim 
deed  of  the  premises  to  Jedediah  Skinner,  on  the  24th  day  of  July, 

1843- 

There  can  be  no  doubt  but  that  Willard  M.  Beebe,  being  a  minor 
at  the  time  of  entering  into  the  contract  with  the  orator,  might 
have  disaffirmed  the  contract  on  coming  of  age;  and  had  he  done  so, 
the  orator  probably  could  not  have  reclaimed  the  premises  without 
paying  back  what  he  had  received  in  part  payment  for  the  land. 
Whatever  may  be  the  law  elsewhere,  it  is  well  settled  in  this  state  by 
the  cases  of  Bigelow  v.  Kinney,  3  Vt.  353,  and  Richardson  v.  Boright, 
9  Vt.  368,  that  an  infant  cannot  avoid  that  part  of  his  contract 
which  binds  him,  without  also  avoiding  that  part  which  is  in  his 
favor.  If  he  purchase  land  and  execute  notes  for  the  purchase,  or 
a  mortgage  of  the  land  to  secure  the  purchase-money,  he  cannot  dis- 
affirm the  notes  and  mortgage  and  claim  the  land  under  his  deed.  So 
if  he  sell  land  and  take  notes,  he  cannot  avoid  his  deed  and  compel 
payment  upon  his  notes.  And  the  good  sense  and  equity  of  this 
doctrine  is  too  apparent  to  require  any  reasoning,  or  authority  to 
support  it.     In  the  present  case  the  defendant  Beebe  paid  a  part  of 


AVOIDAiNCE   OF   CONTRACTS.  411 

the  purchase   money,  but  avoided  the  payment  of  the  residue,  by 
reason  of  his  infancy. 

It  is  strongly  insisted  in  this  case  by  the  counsel  for  the  defend- 
ants, however,  that  the  orator  could  make  no  claim  upon  the  land, 
or  any  lien  upon  it,  by  reason  of  this  disafifirmance  by  Beebe,  until  he 
first  repaid,  or  offered  to  repay,  the  $200  he  had  already  received. 
As  before  intimated,  the  orator  probably  would  have  been  obliged  to 
do  this  had  Beebe  disaffirmed  his  contract  upon  his  coming  of  age, 
and  claimed  to  be  restored  to  his  former  condition  in  relation  to  the 
purchase  of  the  premises.  But  this,  it  seems,  he  did  not  do;  he  not 
only  affirmed  the  contract  o&  purchase,  by  continuing  in  possession 
of  the  land,  but  even,  after  he  had  actually  avoided  the  payment  of 
the  debt  to  the  orator  for  the  land,  he  proceeded  to  convey  the  land 
away  to  Lang.  This,  we  think,  must  effectually  preclude  him  from 
claiming  any  return  of  the  sum  he  had  previously  paid.  Under 
these  circumstances  it  seems  apparent  to  us  that,  upon  the  plainest 
principles  of  common  honesty,  as  well  as  upon  the  principles  of  equity 
law,  the  orator  should  have  a  lien  upon  the  premises,  as  against 
Willard  M.  Beebe,  for  that  portion  of  the  purchase-money,  the  pay- 
ment of  which  he  had  avoided  by  his  plea  of  infancy. 

******** 

The  decree  of  the  chancellor  is  therefore  affirmed. 


5.    Avoidance  a  Privilege  Personal  to  the  Infant. 

BOZEMAN  ET  AL.  V.   BROWNING  et  al 

31  Ark.  364. — 1876. 

Appeal  from  Clark  Circuit  Court  in  Chancery. 

About  the  year  1836,  John  Browning,  a  resident  of  Alabama,  fur- 
nished his  son,  Joseph  A.  Browning,  a  young  man  about  eighteen 
years  of  age,  with  $1,000,  and  sent  him  to  Arkansas  to  purchase 
lands,  directing  him  to  take  the  title  to  the  lands  in  his  own  name. 
It  seems  that,  on  the  5th  of  February,  1839,  Joseph  A.  Browning, 
when  still  a  minor,  sold  the  lands  to  appellee,  David  M.  Browning, 
an  older  brother,  and  gave  him  a  bond  for  title,  acknowledging  the 
full  payment  of  the  purchase-money,  $2,500,  and  binding  himself  and 
his  heirs  to  make  him  a  good  and  lawful  title  to  the  lands  by  the  ist 
of  September  then  following,  when  he  would  be  over  twenty-one  years 
of  age. 

On  the  roth  of  September,  1839,  Joseph  A.  Browning  made  a  brief 
will,  by  which,   in  general  terms,  he  bequeathed  all  his  property. 


412  INFANCY. 

both  real  and  personal  (after  payment  of  his  debts),  to  his  father, 
John  Browning,  during  his  natural  life,  and  after  his  death  to  his 
mother,  Nancy  Browning,  and,  at  the  death  of  them  both,  to  be 
equally  divided  between  his  brothers  and  sisters  of  the  whole  blood. 
He  died  on  the  15th  of  September,  1839,  in  Talladega  county,  Ala- 
bama, where  he  resided  previous  to  his  death. 

On  the  4th  of  November,  1839,  his  will  was  probated  before  the 
Orphans'  Court  of  Talladega  county,  Alabama,  and  his  father,  John 
Browning,  was  appointed  administrator  of  his  estate,  with  the  will 
annexed,  and  qualified  as  such.  On  the  4th  of  November,  1839,  the 
same  day  on  which  the  will  of  Joseph  A.  Browning  was  probated, 
and  his  father  appointed  and  qualified  as  administrator  of  his  estate, 
David  M.  Browning  filed  a  petition  in  the  Orphans'  Court  of  Talla- 
dega county,  stating  that,  on  the  5th  day  of  February,  1839,  he  had 
purchased  the  Arkansas  lands  (describing  them)  of  Joseph  A.  Brown- 
ing; that  John  Browning  had  been  appointed  his  administrator,  etc., 
and  prayed  that  he  be  ordered  to  come  before  the  court  and  convey 
to  petitioner,  title  to  the  lands  described  in  the  bond,  according  to 
the  understanding  of  his  testator,  etc.  On  the  2d  of  March,  1840, 
the  Orphans'  Court  ordered  the  deed  to  be  made.  On  the  2d  day  of 
March,  1840,  the  same  day  on  which  the  order  was  made,  John 
Browning,  administrator,  etc.,  executed  to  David  M.  Browning  a 
deed  for  the  lands,  in  accordance  with  the  order. 

David  M.  Browning,  and  all  persons  holding  under  him,  by  con- 
veyances, continued  in  possession  of  the  lands  until  the  commence- 
ment of  this  suit,  12th  of  January,  1870.  The  bill  was  filed  on  the 
chancery  side  of  the  Clark  Circuit  Court  by  Michael  Bozeman,  and 
wife,  Lucy  Ann,  a  sister  of  Joseph  A.  Browning,  of  the  whole  blood, 
and  Gustavus  A.  Sessions  and  David  May,  sons  of  Elizabeth  Brown- 
ing, who  was  also  a  whole  blood  sister  of  Joseph  A.  Browning,  and 
had  died  after  having  been  several  times  married.  The  other  living 
brothers  and  sisters  of  the  whole  blood  of  Joseph  A.  Browning,  the 
heirs  of  such  as  were  dead,  and  persons  in  possession  of  the  lands, 
under  successive  conveyances  from  David  M.  Browning,  were  made 
defendants.  The  bill  prayed  that  the  lands  be  decreed  to  be  the 
property  of  the  plaintiffs,  and  defendants  alleged  to  be  the  brothers 
and  sisters,  etc.,  of  the  whole  blood  of  Joseph  A.  Browning,  and  for 
an  account  of  rents  and  profits  as  against  the  defendants  in  posses- 
sion of  and  claiming  the  lands.  It  seems  that  the  brothers  and 
sisters,  etc.,  of  Joseph  A.  Browning  who  were  made  defendants,  de- 
clined to  join  as  plaintiffs  in  the  bill. 

The  cause  was  finally  heard  on  the  pleadings  and  evidence,  the 
bill  was  dismissed  for  want  of  equity,  and  plaintiffs  appealed. 


AVOIDANCE    OF    CONTRACTS.  413 

English,  Ch.  j  *  *  *  Appellants  further  alleged  in  the  bill, 
that,  if  mistaken  in  the  averment  that  the  bond  for  title  was  a  fabri- 
cation, etc.,  Joseph  A.  Browning  was  an  infant,  under  the  age  of 
twenty-one  years,  when  he  executed  the  bond,  and  that  the  Orphans' 
Court  of  Talladega  county,  Alabama,  was  without  jurisdiction  to  de- 
cree specific  performance,  etc.  The  answers  admit  that  Joseph  A. 
was  under  age  when  he  made  the  bond.  It  appears  that  he  lived 
about  twenty-five  days  after  he  was  of  age.  The  bond  for  title  was 
not  void,  because  of  the  infancy  of  the  obligor.  Modern  decisions 
have  established  the  rule,  that  an  infant's  contracts  are  none  of  them 
absolutely  void,  that  is,  so  far  void  that  he  cannot  ratify  them  after 
he  arrives  at  the  age  of  legal  majority.  Vaughaii,  Adm' r,  v.  Parr, 
20  Ark.  608.  The  sale  of  the  lands  seems  not  to  have  been  improvi- 
dent. It  was  made  in  accordance  with  the  wishes,  and  with  the 
approbation  of  the  father,  and  it  is  not  shown  that  the  price  paid  for 
the  lands  was  not  a  fair  one. 

As  a  general  rule,  no  one  but  the  infant  himself,  or  his  legal  repre- 
sentatives, executors  and  administrators,  can  avoid  the  voidable 
acts,  deeds  and  contracts  of  an  infant,  for  while  living,  he  ought  to 
be  the  exclusive  judge  of  the  propriety  of  the  exercise  of  a  personal 
privilege  intended  for  his  benefit;  and,  when  dead,  they  alone  should 
interfere  who  legally  represented  him.  Gullett  and  Wife  v.  Lamber- 
to/i,  6  Ark.  (.1  Eng.)  118;  i  Parsons  on  Contracts,  329;  Tyler  on 
Inf.  and  Cov.  59. 

It  does  not  appear  that  the  contract  in  question  was  disaffirmed 
by  the  infant,  after  he  was  of  age.  There  is  no  inconsistency  be- 
tween his  will  and  the  bond  for  title.  The  will  makes  no  reference 
to  the  Arkansas  lands  described  in  the  title  bond.  The  devisor  de- 
vised, in  general  terms,  his  real  and  his  personal  property.  It  is 
shown  that  he  owned  both  real  and  personal  property  in  Alabama, 
at  the  time  he  made  his  will;  and  there  is  some  evidence  that  he 
expressed  a  desire,  during  his  last  illness,  to  make  a  deed  to  his 
brother,  David  M.,  for  the  Arkansas  lands,  which  he  had  sold  and 
contracted  to  convey  to  him,  but  was  restrained  by  his  physician, 
who  advised  him  to  be  quiet,  and  not  be  disturbed  with  business 
transactions,  which  might  prove  detrimental    to  him. 

Had  he  expressly  devised  the  Arkansas  lands,  it  would,  perhaps, 
have  been  a  disaffirmance  of  the  previous  contract  of  sale,  made 
while  he  was  an  infant.  Hoyle  v.  Stowe,  2  Dev.  &  Batt.  322;  Breck- 
enridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  249. 

The  administrator  of  Joseph  A.  did  not,  certainly,  disaffirm  the 
contract;  on  the  contrary,  so  far  as  he  could,  he  affirmed  it.  He 
submitted,  without  objection,  to  the  jurisdiction  and  order  of  the 


414  INFANCY. 

Orphans'  Court  directing  him  to  make  a  deed  to  David  M.  Browning, 
in  accordance  with  the  bond  for  title.  He  executed  the  deed,  brought 
it  to  Arkansas,  and  deHvered  it  to  David  M.  Browning,  who  was 
then  in  possession  of  the  lands  under  the  bond  for  title.  He  set  up 
no  claim  to  the  lands,  during  his  lifetime,  as  devisee  under  the  will. 
It  seems  that  he  sold  the  Alabama  lands  to  Joseph  A.,  and  that  the 
remainder  devisees  under  the  will  made  quit-claim  deeds  to  the  pur- 
chaser. There  is  some  evidence  that  he  brought  the  negro  woman 
which  David  M.  let  Joseph  A.  have  in  part  payment  of  the  lands,  t© 
Clark  county,  and  sold  her,  and  that  at  some  time  after  his  death, 
so  much  of  Joseph's  estate  as  remained  was  distributed  to  his 
devisees. 

The  appellants  attempted  by  their  bill,  after  the  lapse  of  over 
thirty  years,  to  disaffirm  the  bond  for  title,  on  the  ground  of 
Joseph's  infancy,  and  to  recover  the  lands  from  his  vendee,  and 
those  holding  under  him,  claiming  the  lands,  as  remainder  devisees, 
under  general  expressions  of  his  will.  The  rule  seems  to  be,  that 
the  privilege  of  disaffirming  an  infant's  contract  extends  to  his  legal 
representatives,  after  his  death,  or  his  privies  in  blood,  entitled  to 
the  estate  upon  avoidance  of  the  contract,  but  not  to  his  surety, 
endorser,  or  any  strangers,  or  his  assignee,  or  other  privy  in  estate 
only.  I  Chitty  on  Contracts,  ii  American  ed.,  p.  222,  note  (o). 
The  rule  would  extend,  says  Mr.  Tyler  (Inf.  and  Gov.  p.  59),  to 
privies  in  blood  of  the  infant,  but  not  to  his  assignees  or  privies  in 
estate  only. 

The  appellants,  in  their  bill,  claim  the  lands  not  as  the  heirs  or 
privies  in  blood  of  the  infant,  but  solely  as  devisees  under  his  will, 
and  they  claim  to  exclude  all  others,  except  his  brothers  and  sis- 
ters, of  the  whole  blood,  and  their  descendants.  In  other  words, 
they  claim  as  devisees  under  the  will,  as  any  stranger  might  do,  if  a 
devisee,  though  not  an  heir  or  privy  in  blood.  They  place  them- 
selves, in  their  bill,  on  the  ground  only  of  privies  in  estate. 

Had  Joseph  died  intestate,  possibly  his  Arkansas  lands  might 
have  gone  to  his  father,  who  furnished  the  money  to  purchase  them, 
and,  on  his  death,  to  the  heirs  of  the  father  generally;  but,  if  the 
lands  were  a  new  acquisition,  they  would  have  gone  to  the  father 
for  life,  and  in  remainder  to  the  collateral  kindred  of  Joseph. 
Gantt's  Digest,  sec.  2161;  Kelly  s  Heirs  et  al.  v.  McGuire  et  at.,  15 
Ark.  555. 

David  M.  Browning  paid  for  the  lands,  took  the  bond  for  title, 
and  went  into  possession  of  the  lands  under  it.  Had  Joseph  A. 
lived,  he  would  have  been  obliged  to  disaffirm  the  contract  within 
the  period  of  limitation,  which  commenced  running  at  his  majority, 


AVOIDANCE   OF   CONTRACTS.  415 

or  his  right  to  disaffirm  would  have  been  barred.  He  certainly  could 
not  have  maintained  this  bill,  after  the  lapse  of  thirty  years,  to  dis- 
affirm the  contract,  and  recover  the  lands  of  his  vendee,  and  his 
grantees;  and  the  statute  having  commenced  running  against  him 
during  his  lifetime,  we  do  not  see  that  appellants,  who  claim  under 
his  will,  are  in  any  better  condition  than  he  would  have  been,  had 
he  lived  and  brought  the  bill  himself.  Cresinger  v.  Lessee  of  Weldi, 
15  Ohio,  195;  Hughes  v.  Watson^  10  Ohio,  134;  Drake  v.  Ramsey, 
5  Ohio,  252,  Boolv.  Mix,  17  Wend.  119;  Bla^ikership  et  al.  v.  Stout^ 
25  111.  132;  Tyler  on  Inf.  and  Gov.  67.  Moreover,  had  Joseph  lived 
and  brought  this  bill  to  disaffirm  his  contract,  and  recover  the  lands 
in  apt  time,  the  court  would  not  have  granted  him  the  relief  prayed, 
without  his  paying  back  to  David  M.  Browning  the  purchase  money 
which  he  paid  him  for  the  lands.  Yet  appellants,  who  claim  the  lands 
under  Joseph's  will,  seek,  by  their  bill,  to  disaffirm  his  contract  and 
recover  the  lands,  and  do  not  tender  or  offer  to  refund  any  part  of 
the  purchase  money.  It  was  well  said  by  Chancellor  Kent,  that  the 
privilege  of  infancy  is  to  be  used  as  a  shield,  and  not  as  a  sword. 
2  Kent's  Com.  240;  Tyler  on  Inf.  and  Cov.  77;  Strain  v.  Wright, 
7  Georgia,  570;  Jeffords'  Adni  r  v.  Ringold  et  al.,  6  Ala.  544  (in  which 
it  was  also  held  that  the  executor  or  an  administrator  of  an  infant 
could  ratify  the  contract  of  an  infant,  without  any  new  considera- 
tion). Badger  v.  Phinney,  15  Mass.  359;  i  Parsons  on  Con.  320; 
Womack,  Adtfi'r,  v.  IVomack,  8  Texas,  597 ;  Bailey  v.  Bamberger,  11  B. 
Mon.  113;    JVeedv.  Beebe  et  al,  21  Vt.  495. 

******** 
Upon  the  whole  record,  the  decree  of  the  court  below,  dismiss- 
ing the  bill  for  want  of  equity,  is  affirmed. 


6.   Effect  of  Avoidance,  in  General. 
HOYT  V.  WILKINSON. 

57  Vt.  404.— 1885. 

Assumpsit  on  a  note.  Heard  on  demurrer  to  the  defendant's  re- 
joinder, June  Term,  1884,  Veazey,  J.,  presiding.  Demurrer  over- 
ruled, and  judgment  for  the  defendant.  Pleas,  general  issue. 
Statute  of  Limitations,  and  infancy. 

Rejoinder  in  part: 

"  Yet  for  rejoinder  in  this  behalf  the  said  defendant  says  that  said 
promissory  note  in  the  first  count  of  the  said  declaration  mentioned 
was  made  and  delivered  by  said  defendant  to  one  John   B.  Covey, 


,]\6  INFANCY. 

the  original  payee  of  said  note,  in  respect  of  a  contract  of  purchase 
of  a  certain  horse  by  said  defendant,  of  said  John  B.  Covey,  and  in 
payment  of  said  horse,  on  the  15th  day  of  December,  A.  D.  1853,  at 
Sandgate,  aforesaid;  and  afterwards  and  before  the  said  promissory 
note  became  due,  and  while  the  said  John  B.  Covey  held  and  owned 
said  promissory  note,  and  before  the  said  defendant  had  attained  the 
age  of  twenty-one  years,  to  wit:  on  the  first  day  of  February,  1854,  at 
Sandgate  aforesaid,  the  said  defendant  did  rescind  and  disaffirm  said 
contract  of  purchase  of  said  horse,  and  then  and  there  did  tender  and 
offer  to  said  John  B.  Covey  the  said  horse  so  purchased  of  him  as 
aforesaid,  and  then  and  there  requested  and  demanded  of  said  John 
B.  Covey  that  he  surrender  and  give  up  to  said  defendant  the  said 
promissory  note.  And  that  said  John  B.  Covey  then  and  there  did 
refuse  to  receive  said  horse  so  offered  and  tendered  as  aforesaid,  and 
did  refuse  to  surrender  and  give  up  to  said  defendant  the  said  prom- 
issory note  so  demanded  as  aforesaid." 

RowELL,  J.  An  infant  may  avoid  his  contracts  relating  to  per- 
sonal property  while  under  age  and  immediately,  i  Am.  Lead.  Cas. 
258;  Price  V.  Furman,  27  Vt.  268;  Willis  v.  Ttuambly,  13  Mass.  264; 
Stafford  V.  Roof,  9  Cow.  626;  Bool  v.  Mix,  17  Wend.  119,  132.  The 
dictum  to  the  contrary  in  Farr  v.  Sumner,  12  Vt.  31,  is  not  sound, 
although  not  without  some  support  in  the  authorities. 

But  what  was  the  effect  of  the  avoidance  and  tender  here  rejoined? 
It  was,  as  between  the  parties,  nothing  else  appearing,  in  the  lan- 
guage of  Chief  Justice  Shaw  in  Boyden  v.  Boyden,  9  Met.  519,  to 
"  annul  the  contract  on  both  sides  ab  initio,"  and  to  divest  the  plain- 
tiff of  title  to  the  note,  and  re-invest  him  with  title  to  the  horse. 
Willis  \.  Twambly,  supra;  Badger  w  Finney,  15  Mass.  359;  i  Am.  Lead. 
Cas.  258,  259.  Willis  v.  Ttvambley  is  exactly  in  point.  There  the 
plaintiff,  a  minor,  had  a  non-negotiable  note  payable  to  himself, 
which  he  exchanged  with  Cook  for  a  worthless  watch.  The  next 
day,  under  the  direction  of  his  father,  he  disaffirmed  the  contract 
by  tendering  back  the  watch  to  Cook  and  demanding  the  note,  which 
Cook  refused  to  deliver,  and  also  to  take  the  watch.  Subsequently 
the  maker  of  the  note,  on  being  informed  of  the  transaction  and  re- 
ceiving a  discharge  from  plaintiff's  father,  gave  a  new  note  in  lieu  of 
the  old  one,  after  which  Cook  passed  the  old  note  to  B.,  assuring 
him  it  would  be  paid,  and  B.  brought  suit  thereon  against  the  maker 
in  the  plaintiff's  name;  and  it  was  held  that  the  note  ceased  to  be 
the  property  of  Cook  from  the  time  the  plaintiff  disaffirmed  the  con- 
tract, and  that  the  settlement  made  by  the  defendant  when  he  gave 
the  new  note  discharged  him  from  liability  of  the  old   note.     The 


AVOIDANCE    OF   CONTRACTS.  417 

case  does  not  disclose  what  was  done  with  the  watch  after  it  was 
tendered  back,  and  no  point  was  made  of  that  by  either  court  or 
counsel. 

Price  V.  Furman  is  also  muc:h  in  point.  There  the  minor  ten- 
dered back  the  horse  and  demanded  the  property  he  had  given  in 
exchange  for  it,  and  on  defendant's  refusal  to  receive  the  horse  or 
to  re-deliver  the  property,  the  minor  turned  the  horse  loose  into 
the  highway  and  left  it;  but  the  court  laid  no  stress  on  that  fact, 
but  said  that  when  the  contract  was  rescinded  it  could  not  be  en- 
forced, and  that,  on  general  principles,  the  minor  could  recover,  as 
there  had  been  an  offer  to  return  the  horse,  which  was  in  his  posses- 
sion and  under  his  control. 

This  is  very  analogous  to  the  tender  of  specific  articles  in  pav- 
ment  of  a  note  or  other  contract,  where  a  tender  of  the  articles 
according  to  the  contract  vests  the  property  in  the  promisee  and 
discharges  the  debt;  and  the  promisor  is  not  bound  to  keep  the 
property,  nor  to  plead  uncore prist.     Barney  v.  Bliss,  1  D.  Chip.  399. 

Plaintiff  contends  that  it  is  fairly  inferable  from  the  rejoinder  that 
the  defendant  continued  to  keep  the  horse  for  such  a  length  of  time 
and  in  such  a  manner  as  to  amount  to  a  waiver  of  his  avoidance,  and 
an  affirmance  of  the  contract.  But  no  such  inference  can  fairly  be 
drawn  from  the  pleading.  If  plaintiff  thought  that  point  a  good 
one,  and  desired  to  raise  it,  he  should  have  sur-rejoined. 

We  find  no  error  in  the  judgment  below;  but  at  the  plaintiff's  re- 
quest, the  same  is  rexQvsed  pro  forma,  and  the  cause  remanded,  with 
leave  to  plaintiff  to  replead  on  the  usual  terms.' 


7.   Effect  of  Avoidance  when  Action  is  Brought,  by  the  Adult,  upon  the 

Avoided   Contract. 

CRAIGHEAD  v.  WELLS. 
21  Mo.  404. — 1855. 

This  was  an  action  to  recover  damages  for  the  alleged  breach  of 
an  agreement  under  seal,  by  which  the  plaintiff  contracted  to  furnish 
to  the  defendants  "  one  wagon  and  team  (in  conjunction  with  Alfred 
Bowman,  part  of  said  wagon  and  team)  and  provisions  for  an  over- 
land trip  to  California,"  in  consideration  of  which  the  defendants 

'  An  infant  granted  an  easement  for  the  passage  of  a  sewer  through  his  land. 
Upon  arriving   at  majority,  he  disaffirmed  the  grant.     It  was  held  that  the  con- 
tinued use  of  the  sewer,  after  disaffirmance,  would  be  a  nuisance  which  he  '^ould 
abate.     McCarthy  v.  Nicrosi,  72  Ala.  332. 
[Domestic  Relations  —  27.] 


4l8  INFANCY. 

bound  themselves,  "jointly  and  severally,  to  pay  to  said  Craighead 
the  one-half  of  all  the  net  profit  that  they  may  make  from  the  first 
six  months'  work  after  they  have  gotten  to  work  in  the  mines  of 
California,  or  in  other  employment  which  they  can  make  most  profit- 
able, counting  the  time  so  employed." 

The  defendant  Nickel  relied  upon  infancy  as  a  defence. 

Scott,  J.  *  *  *  There  was  no  error  in  refusing  the  fourth 
instruction  asked  by  the  appellant,  as  to  the  power  of  disaffirming 
the  contract  in  Nickel,  by  reason  of  his  infancy;  nor  in  giving 
the  instruction  in  relation  to  infancy  prayed  by  the  respondent, 
Nickel.  The  rule  that,  if  an  infant  avoids  an  executed  contract, 
when  he  comes  of  age,  on  the  ground  of  infancy,  he  must  restore 
the  consideration  which  he  had  received,  has  no  application  to 
the  circumstances  of  this  case.  This  is  no  executed  contract. 
It  is  an  agreement  on  the  part  of  an  infant  to  perform  services  in 
consideration  of  provisions  previously  furnished,  and  if  infancy  is 
not  a  good  plea  against  a  contract  of  that  nature,  it  is  not  easy  to 
see  of  what  avail  such  a  defence  is  in  law.     *     *     * 


MORSE  V.   ELY. 


154  Mass.  458. — 1891. 

Contract  brought  by  an  infant  for  wages  alleged  to  be  due  him 
from  the  defendant. 

Barker,  J.  The  plaintiff,  when  of  the  age  of  twenty  years  and 
in  the  employment  of  the  defendant,  agreed  with  him  that  there 
should  be  applied  toward  the  payment  of  his  wages  a  sum  of  $10, 
the  difference  between  the  price  of  a  horse  and  that  of  a  cow  which 
he  received  in  exchange  from  the  defendant,  and  also  further  sums 
for  the  services  of  a  stallion  and  of  a  bull,  and  for  a  calf  which  he 
bought  of  the  defendant,  and  for  the  pasturage  of  a  horse.  These 
items  were  credited  by  the  minor  in  his  account  with  his  employer. 
The  contracts  from  which  they  resulted  were  fairly  made,  the  prices 
were  reasonable,  and  all  the  contracts  were,  in  fact,  beneficial  to  the 
minor.  The  cow,  and  a  colt  resulting  from  the  service  of  the  stal- 
lion, have  been  sold  by  him  at  their  full  value,  for  cash.  Whether 
he  is  yet  in  the  possession  of  the  calf  does  not  appear.  He  has 
elected  to  avoid  his  contracts  with  the  defendant,  and  has  brought 
this  action  to  recover  for  his  wages,  without  deduction  for  any  of 
the  items.  The  question  raised  by  the  bill  of  exceptions  is  whether, 
under  the  circumstances,  the  defendant  is  entitled  to  be  credited 
with  their  amount. 


AVOIDANCE    OF    CONTRACTS.  419 

None  of  the  contracts  were  for  necessaries  The  plaintiff  had  there- 
fore a  right  to  avoid  them  at  his  election,  and  it  was  not  necessary 
for  him,  in  order  so  to  do,  to  return  the  consideration  received,  or 
to  put  the  other  party  in  statu  quo.  Chandler  v.  Simmons,  97  Mass. 
508,  514;  Bartlett  v.  Drake.,  100  Mass.  174,  177;  Walsh  v.  Young, 
no  Mass.  396,  399;  Dube  v.  Beaudry,  150  Mass.  448;  Boody  v.  AIc- 
Kenney,  23  Me.  517;  Price  v.  Fur  man,  27  Vt.  268. 

If  the  sums  which  the  defendant  seeks  to  apply  in  payment  had 
been  actually  paid  to  him  in  money,  the  plaintiff,  upon  rescinding 
his  contracts,  could  recover  them  back.  McCarthy  v.  Henderson, 
138  Mass.  310;  Pyne  v.  Wood,  145  Mass.  558.  The  defendant  can- 
not avail  himself  of  and  enforce,  by  way  of  an  allegation  of  payment, 
contracts  which  he  could  not  enforce  by  a  direct  suit.  McCarthy  \ . 
Henderson,  138  Mass.  310.  To  allow  him  to  do  so  would  be  to  affirm 
and  enforce  against  the  minor  contracts  which  for  his  protection  the 
law  allows  him  to  rescind. 

Exceptions  overruled.* 


8.   Effect  of  Avoidance  when  Action  is  Brought,  by  the  Infant,  Based 
UPON  His  Avoidance. 

WHITMARSH  v.   HALL. 

3  Denio  (N.  Y.)  375.— 1846. 

Error  to  the  Onondaga  Common  Pleas.  Hall,  an  infant,  by  his 
next  friend,  sued  L.  &  J,  Whitmarsh  for  work  and  labor.  It  was 
proved  that  the  plaintiff  had  worked  for  the  defendants  half  a  month, 
under  a  contract  to  labor  for  them  for  a  certain  longer  period  of 
time,  and  had  left  without  cause.  After  the  plaintiff  had  proved  the 
value  of  the  labor,  the  defendants  proposed  to  ask  a  witness  what 
the  plaintiff's  services  were  worth,  taking  into  consideration  the 
damages  they  had  sustained  in  consequence  of  his  not  fulfilling  his 
agreement.  The  justice  refused  to  receive  this  evidence,  on  the 
ground  that  the  plaintiff  was  not,  on  account  of  his  infancy,  bound 
by  his  contract;  and  gave  judgment  for  the  plaintiff,  which  the  Com- 
mon Pleas  affirmed  on  certiorari. 

Jewett,  J.  The  evidence  offered  by  the  defendants,  to  show  the 
value  of  the  plaintiff's  services,  taking  into  consideration  such  dam- 
ages as  they  had  sustained  in  consequence  of  his  putting  an  end  to 


'  See  however,  Dickerson  v.  Gordon,  24  N.  Y.  State  Reporter,  448  (Supieme  Ct. 
General  Term,  1889). 


420  INFANCY. 

the  contract  by  voluntarily  refusing  to  fulfil  it  on  his  part,  was  prop- 
erly rejected  by  the  justice.  This  contract  was  voidable  by  the 
plaintiff  by  reason  of  his  infancy,  according  to  the  general  rule  of 
law,  that  the  contracts  of  infants,  with  certain  exceptions  which  do 
not  embrace  this  case,  may  be  avoided  by  them  either  before  or 
after  they  arrive  at  full  age.  2  Kent's  Com.  237  (5th  ed.)  There 
is  no  case  where  it  has  been  held  that  an  executory  contract,  by  an 
infant,  not  being  for  necessaries,  is  obligatory  upon  him.  The 
plaintiff  here  has  put  an  end  to,  and  avoided  his  contract  with  the 
defendants,  by  voluntarily  leaving  their  service  and  bringing  this 
suit  to  recover  the  value  of  his  services. 

It  is  insisted  on  the  part  of  the  defendants  that  the  justice  erred 
in  rejecting  the  evidence  offered  by  them  on  the  ground  that, 
although  the  plaintiff  was  an  infant  and  had  a  right  to  avoid  his 
contract  and  recover  the  value  of  his  services,  yet  that  the  defend- 
ants were  entitled,  if  they  had  sustained  an  injury  by  such  avoid- 
ance, to  have  a  proper  allowance  therefor  made  against  such  value. 
In  other  words,  it  is  claimed  that  the  defendants  are  entitled,  as  a 
set-off  against  the  value  of  the  plaintiff's  services,  such  sum  as  is 
equal  to  the  amount  of  the  injury  sustained  by  them,  by  the 
avoidance  of  the  contract  by  the  plaintiff,  which,  In  effect,  would 
charge  the  infant  with  the  performance  of  his  contract,  or  with 
damages  for  its  violation.  The  proposition  is  not  sustained  by  any 
elementary  principle  known  to  the  law,  and  I  do  not  find  that  it  has 
been  recognized  by  any  adjudged  case,  unless  by  that  of  Moses  v. 
Stevens^  2  Pick.  332.  In  that  case,  the  plaintiff,  an  infant,  had 
made  a  special  agreement  to  labor  for  the  defendant  a  certain  time 
for  certain  wages,  and  before  the  time  expired  left  his  service  vol- 
untarily without  cause.  It  was  held  that  he  might  recover  on  a 
(juantum  meruit  for  the  services  performed,  and  if  this  employer 
was  injured  by  the  sudden  termination  of  the  contract  without 
notice,  a  deduction  should  be  made  on  that  account.  The  learned 
judge,  in  delivering  the  opinion  of  the  court,  said:  "We  think  the 
special  contract  being  avoided,  an  indebitatus  assumpsit,  upon  a 
quantum  meruit  lies,  as  it  would  if  no  contract  had  been  made;  and 
no  injustice  will  be  done,  because  the  jury  will  give  no  more  than, 
under  all  the  circumstances,  the  services  were  worth,  making  any 
allowance  for  any  disappointment  amounting  to  an  injury  which  the 
defendant  in  such  case  would  sustain  by  the  avoiding  of  the  contract." 
With  great  respect,  I  am  unable  to  yield  my  assent  to  the  soundness 
of  the  qualification  annexed  to  the  proposition.  I  think  that  the 
infant  plaintiff,  in  such  an  action,  is  entitled,  by  well-settled  princi- 
ples of  law,  to  recover  such  sum  for  his  services  as  he  would  be  en- 


AVOIDANCE   OF   CONTRACTS.  421 

titled  to  if  there  had  been  no  express  contract  made.  A  recovery- 
is  allowed  upon  the  assumption  that  there  is  no  express  contract 
at  all. 

The  judgment  under  review  is  therefore  correct. 

Judgment  affirmed. 


VEHUE  V.   PINKHAM. 

60  Me.  142. — 1871. 

Assumpsit  to  recover  for  labor  from  Oct.  10,  1867,  to  July  25, 
1868,  $124.91. 

Plaintiff,  being  still  a  minor,  repudiated  his  contract,  and  claimed 
to  recover  on  a  quantum  meruit  the  balance  stated  as  the  reasonable 
compensation  for  his  services. 

It  appeared  that  while  the  plaintiff  was  in  the  employment  of  the 
defendant,  and  during  the  latter's  absence,  the  plaintiff,  for  his  own 
gratification,  harnessed  the  defendant's  partially  broken  colt  to  the 
defendant's  wagon;  that  the  bit  broke,  the  colt  became  unmanage- 
able, and,  running,  threw  the  wagon  against  the  barn  and  broke  the 
wagon  and  harness. 

Barrows,  J.  The  jury  were  explicitly  instructed  that  the  minor 
was  not  bound  by  his  contract,  and  was  entitled  to  recover  the  value 
of  his  services,  deducting  what  he  had  received  from  the  defendant; 
and  "  that  if  the  colt  was  harnessed  with  the  consent  of  the  defend- 
ant, the  plaintiff  would  not  be  liable  to  have  the  damage  deducted 
from  his  wages;  but  if  the  plaintiff  harnessed  the  colt  contrary  to 
the  defendant's  orders,  the  jury  might  deduct  the  amount  of  the  in- 
jury so  done  from  the  value  of  his  services  to  the  defendant." 

The  phraseology  of  this  last  instruction  was  faulty;  but  we  do  not 
perceive  that  the  plaintiff  could  have  been  wronged  thereby.  It  was 
what  his  services  were  reasonably  worth  under  all  the  circumstances 
of  the  case  that  he  was  entitled  to  recover.  If  by  his  negligence  or 
disobedience  of  orders  he  broke  his  employer's  tools  or  damaged  his 
property,  his  services  were  manifestly  worth  just  so  much  less.  The 
proper  instruction  would  have  been  that  the  jury  might  consider 
such  circumstances  in  estimating  the  value  of  his  services. 

Practically,  however,  the  effect  of  the  instruction  given  was  pre- 
cisely the  same.  The  plaintiff  was  not  injured  by  the  failure  of  the 
presiding  judge  to  use  language  that  was  technically  correct. 

Exceptions  overruled. 

Appleton,  C.  J.;  Cutting,  Walton,  DANFORTHand  Tapley,  J  J., 
concurred. 


422  INFANCY. 

WILHELM  V.   HARDMAN. 

13  Md.  140. — 1858. 

Tuck,  J.  This  is  an  action  by  an  infant,  to  recover  for  work 
and  labor.  Fhere  are  several  pleas,  one  of  which,  in  substance, 
states  that  in  August,  1852,  the  plaintiff  agreed  with  defendant  to 
work  and  labor  for  him,  on  his  farm,  for  seven  years,  in  considera- 
tion that  the  defendant  then  and  there  agreed  and  contracted,  on  his 
part,  to  provide  for  the  plaintiff  necessary  meat  and  drink,  lodging 
and  clothing,  and  to  give  him  some  schooling  when  there  was  a 
school  convenient,  during  the  time  he  would  work  and  labor  for  de- 
fendant; and  that  if  the  plaintiff  remained  and  worked  for  the  de- 
fendant for  the  seven  years,  that  the  defendant  would  give  him  a 
horse,  saddle  and  bridle  in  addition;  that  the  defendant  entered 
into  said  contract  with  the  plaintiff,  ^nd  that  he  performed  every- 
thing on  his  part  to  be  performed,  but  the  plaintiff  refused  to  per- 
form the  contract  on  his  part,  and  left  the  service  of  the  defendant 
before  the  seven  years  expired,  and  that  the  causes  of  action  con- 
tained in  the  declaration  are  the  same,  and  no  other,  than  those 
which  the  plaintiff  did  under  said  contract.  To  this  plea,  the  plain- 
tiff, among  other  replications,  set  up  his  infancy  at  the  time  of  the 
alleged  contract,  to  which  the  defendant  demurred;  and  the  court 
ruled  against  the  demurrer.  This  issue  in  law,  therefore,  presents 
the  question,  whether  the  matter  of  the  plea  is  in  answer  to  the 
action;  in  other  words,  whether  an  infant  can  agree  to  work  and 
labor,  as  a  consideration  for  his  support,  and,  after  the  contract  had 
been  partially,  and  concurrently  performed  on  both  sides,  disaffirm 
his  engagement  and  sue  for  the  value  of  the  services  rendered. 

Upon  looking  at  the  record,  we  cannot  say  that  the  contract 
pleaded  is  anything  but  an  agreement  for  necessaries.  Bac.  Abr. 
Infancy;  Com.  Digest,  Enfant;  Chitty  on  Contracts,  136,  137,  138; 
Parsons  on  Cont.  245;  13  Pick.  i.  We  lay  out  of  view  the  engage- 
ment of  the  defendant  to  give  the  plaintiff  a  horse  and  equipments, 
because,  being  something  in  addition  to  his  support,  the  plaintiff 
cannot  aver  this  item  of  the  agreement  to  avoid  it  in  toto.  And  we 
must  bear  in  mind  that  the  suit  is  not  by  the  party  who  furnished 
the  necessaries,  but  by  the  infant  for  his  wages,  which  places  the 
latter  in  a  different  relation  in  point  of  law,  as  to  his  contract,  than 
it  would  have  been  if  he  had  been  sued.  Corpe  v.  Overton,  10 
Bing.  252. 

The  plaintiff's  counsel,  admitting  that  an  infant  is  liable  for  neces- 
saries, contends   that   his   contracts   for  labor  and   service  are  not 


AVOIDANCE   OF   CONTRACTS.  42^ 

binding  on  him,  that  if  he  chooses  to  avoid  them  he  may  recover, 
on  a  quantum  meruit,  for  the  work  actually  done,  and  that  in  an 
action  like  the  present,  the  value  of  the  services  cannot  be  dimin- 
ished by  allowing  the  employer  for  any  injury  which  he  may  have 
suffered  from  the  refusal  of  the  infant  to  perform  the  contract. 
For  the  purposes  of  this  case,  we  may  concede  that,  as  a  general 
rule,  the  contract  of  an  infant  for  labor  and  service,  for  wages,  is 
not  binding  on  him,  and  that  he  may  avoid  his  agreement  and  sue 
for  the  value  of  his  services.  Some  of  the  cases  cited  clearly  show 
this.  But  they  were  not  like  the  one  before  us.  Even  in  Massachu- 
setts, whose  State  Reports  contain  several  such,  it  has  been  decided 
that  where  an  agreement  had  been  made  by  a  minor  with  another, 
that  the  former  should  serve  the  latter,  for  his  board,  clothing  and 
education,  and  the  contract  had  been  performed,  the  minor  could 
not,  after  arrival  at  age,  sue  for  wages,  although  he  offered  evidence 
that  his  services  were  worth  more  than  his  maintenance  and  educa- 
tion. The  court  said  it  was  a  contract  for  necessaries,  in  which 
the  employer  took  the  risk  of  the  health  and  capacity  of  the 
minor,  and  that  it  would  be  injurious  rather  than  beneficial  to 
minors  to  hold  such  agreements  as  of  no  effect.  Stone  v.  Dennison, 
13  Pick.  I.  See,  also,  12  Pick.  no.  The  contract  in  13  Pick,  was 
assented  to  by  the  guardian  of  the  minor,  which  circumstance  was 
noticed  as  evidence  that  it  was  fair  and  reasonable  at  the  time  it 
was  entered  into.  But  as  the  contract  here  is  not  assailed  on  any 
such  ground,  but  objected  to  only  because  of  the  infancy  of  the 
party,  and  not  appearing  to  be  unreasonable,  it  stands  unaffected 
by  the  want  of  such  assent.  As  set  out  in  the  plea,  it  is  such  a 
contract  as  might  have  been  made  with  the  defendant  by  articles  of 
apprenticeship  under  the  acts  of  assembly;  for  the  law  does  not  re- 
quire that  an  infant  shall  be  put  to  learn  a  trade,  or  have  any  degree 
of  education,  but  that  these  shall  be  provided  for  by  the  justices, 
"  in  all  cases  where  they  can."  Act  of  1793,  ch.  45.  In  Harvey  v. 
Owen,  4  Blackf.  337,  it  was  held,  that  a  minor  could  not,  on  the 
ground  of  infancy,  rescind  a  contract  of  this  description,  fairly  made 
and  apparently  to  his  advantage,  and  sue  for  the  value  of  the  labor 
performed.  The  court  agreed  that  the  minor  might  abandon  the 
service,  and,  while  conceding  that  the  decisions  on  the  question  of 
his  right  to  maintain  the  action  had  not  been  uniform,  thought  the 
sounder  principle  and  the  preponderance  of  authority  to  be,  that  he 
could  not  recover,  and  that  to  suffer  him  to  do  so  would  be  en- 
abling him  to  practice  upon  others  that  fraud  and  imposition  against 
which  his  privilege  of  infancy  was  designed  to  protect  himself.  See, 
also,    Macpherson   on   Infants,  ch.  36.     Thus   it   will   be  seen  that 


424  INFANCY. 

there  are  decisions  against  the  doctrine  of  the  cases  cited  on  the 
part  of  the  plaintiff,  as  sought  to  be  applied  on  this  appeal ;  and 
whatever  force  of  authority  they  may  have  in  the  states  where  pro- 
nounced, they  have  no  binding  effect  here. 

******** 

It  was  urged  in  argument  that  the  services  might  be  worth  more 
than  the  support  furnished,  and  that  the  employer  would  thereby 
obtain  an  advantage  over  the  infant.  This  may  occur  in  some 
cases;  but  we  must  remember  that  the  infant  may  leave  the  em- 
ployment at  his  own  caprice,  or  whenever  he  can  procure  better  re- 
turns for  his  labor.  The  employer  is  subject  to  his  will.  If  this 
reason  did  not  apply,  we  think  it  more  in  accordance  with  the  policy 
of  the  law  in  reference  to  infants,  that  they  should  be  held  bound 
by  their  contracts  of  this  kind,  as  far  as  performed,  than  to  offer 
inducements  to  them  to  obtain  employment  with  persons  acting  in 
good  faith,  and,  afterwards,  sue  for  compensation,  not  contemplated 
by  the  other  party  at  the  time  of  the  agreement.  There  are,  doubt- 
less, many  persons  willing  to  afford  homes  and  support  to  indigent 
minors,  who  would  not  take  them  as  apprentices,  or  agree  to  give 
more  than  their  maintenance  and  education  as  a  return  for  their 
labor,  and  many  minors  would  be  fortunate  in  obtaining  such  places. 
But,  if  it  be  established  that  not  only  is  the  performance  of  such 
contracts  to  depend,  as  it  must  under  the  law,  on  the  fidelity  of  the 
minor,  but  that  the  other  party  may  also  be  compelled  to  pay  what 
he  never  expected,  we  presume  few  such  places  could  be  had. 
There  would  then  be  many  instances  of  persons  under  age  refus- 
ing to  be  apprenticed,  yet  without  employment  as  a  means  of  sup- 
port, because  of  the  advantage  which  such  a  construction  of  the  law 
would  give  the  evil  disposed  overall  who  might  take  them  into  their 
service,  even  on  the  terms,  though  without  the  forms,  of  a  legal 
apprenticeship.  The  consequences  in  most  cases,  would  be  visited 
upon  society.  If,  therefore,  the  principle  adverted  to  had  not  been 
plainly  recognized  by  the  Court  of  Appeals,  we  should  feel  war- 
ranted in  adopting,  and  applying  it  to  the  present  case,  as  well  on 
grounds  of  public  policy  as  to  promote  the  interests  of  the  very 
class  in  whose  behalf  our  sympathies  were  invoked  — a  class  whose 
surest  protection  is  often  found  in  the  very  restraints  which  the  law 
imposes. 

It  was  also  insisted  that  the  agreement  not  being  in  writing,  it 
could  have  no  effect  in  the  cause;  but  we  think  that,  according  to 
the  exposition  of  the  statute  of  frauds,  as  given  in  EUicott  v.  Peter- 
son s  Exc'rs,  4  Md.Rep.  476,  the  defence  was  well  taken,  such  a 
contract  not  being  within  the  statute,     i  Smith,  Lead.  Cases  (ed.  of. 


AVOIDANCE   OF   CONTRACTS.  425 

1855),  432;  Peter  v.   Cornpton.     The  defendant's  exceptions   to  the 
rulings  of  the  court  on  the  prayers  present,  substantially,  the  valid- 
ity and  effect  of  the  agreement,  but  as  the  judgment  must  be  re- 
versed on  the  demurrer,  they  need  not  be  examined. 
Judgment  reversed  v^\t\\o\xX. procedendo. 


LEMMON  V.  BEEMAN. 

45  Ohio  St.  505. — 1888. 

The  plaintiff  below  sued  the  defendant  for  money  paid  ,by  him  upon 
the  purchase  of  a  certain  stock  of  drugs  of  the  decedent,  the  plaintiff 
being  a  minor  at  the  time  of  the  purchase,  and  having  elected  on 
becoming  of  age  to  rescind  the  contract.  The  judgment  was  for 
the  plaintiff  and  was  affirmed  in  the  district  court.  The  part  of  the 
charge,  to  which  exception  was  taken,  is  to  the  effect  that  upon 
the  facts  of  the  case,  the  plaintiff  could  recover  without  returning  the 
property. 

MiNSHALL,  J.  *  *  *  The  only  question  presented  upon  the 
record  is,  whether,  upon  the  facts  as  stated,  the  minor  had  the  right, 
on  becoming  of  age,  to  rescind  the  contract  and  recover  the  con- 
sideration he  had  paid,  without  returning  the  property  that  had  been 
sold  and  delivered  to  him. 

The  true  doctrine  now  seems  to  be  that  the  contract  of  an  infant 
is  in  no  case  absolutely  void,  i  Par.  Cont.  295,  328;  Pol.  Cont.  36; 
Harncr  v.  Dipple^  31  Ohio  St.  72;  Williams  v.  Moor,  11  M.  &  W.  256. 
An  infant  may,  as  a  general  rule,  disaffirm  any  contract  into  which 
he  has  entered,  but,  until  he  does  so,  the  contract  may  be  said  to 
subsist,  capable  of  being  made  absolute  by  afifirmance,  or  void  by 
disaffirmance,  on  his  arriving  at  age;  in  other  words,  infancy  con- 
fers a  privilege  rather  than  imposes  a  disability.  Hence,  the  dis- 
affirmance of  a  contract  by  an  infant  is  the  exercise  of  a  right  simi- 
lar to  that  of  rescission  in  the  case  of  an  adult  —  the  ground  being 
minority,  independent  of  questions  of  fraud  or  mistake.  But,  in  all 
else,  the  general  doctrine  of  rescission  is  departed  from  no  farther 
than  is  necessary  to  preserve  the  grounds  upon  which  the  privilege  is 
allowed;  and  is  governed  by  the  maxim  that  infancy  is  a  shield  and 
not  a  sword.  He  is  not  in  all  cases,  as  is  an  adult,  required  to 
restore  the  opposite  party  to  his  former  condition;  for  if  he  has  lost 
or  squandered  the  property  received  by  him  in  the  transaction  that 
he  rescinds,  and  so  unable  to  restore  it,  he  may  still  disaffirm  the 
contract,  and  recover  back   the  consideration  paid  by  him  without 


426  INFANCY. 

making  restitution;  for,  if  it  were  otherwise,  his  privilege  would  be 
of  little  avail  as  a  shield  against  the  inexperience  and  improvidence 
of  youth.  But  when  the  property  received  by  him  from  the  adult 
is  in  his  possession,  or  under  his  control,  to  permit  him  to  rescind 
without  returning  it,  or  offering  to  do  so,  would  be  to  permit  him 
to  use  his  privilege  as  a  sword  rather  than  a  shield. 

This  view  is  supported  not  only  by  reason,  but  by  the  greater 
weight  of  authority.  It  was  recognized  and  applied  by  this  court  in 
Cresinger  v.  Welch,  15  Ohio,  156,  decided  in  1846.  The  following 
is  the  language  used  by  Mr.  Tyler  on  the  subject:  "  If  the  contract 
has  been  executed  by  the  adult,  and  the  infant  has  the  property  or 
consideration  received,  at  the  time  he  attains  full  age,  and  he  then 
repudiates  the  transaction,  he  must  return  such  property  or  con- 
sideration, or  its  equivalent,  to  the  adult  party.  If,  however,  the 
infant  has  wasted  or  squandered  the  property  or  consideration  re- 
ceived during  infancy,  and  on  coming  of  age  repudiates  the  trans- 
action, the  adult  party  is  remediless."  He  then  adds  that:  "  There 
are  expressions  of  judges  and  text- writers  against  this  latter  propo- 
sition, but,"  he  says,  "  the  weight  of  authority  is  in  harmony  with 
it,  and  is  decidedly  in  accord  with  the  general  principles  of  law  for 
the  protection  of  infants."  Tyler,  Inf.  (2d  ed.),  80,  and  cases  cited 
by  the  author.  See,  also,  the  case  of  Price  v.  Furnam,  27  Vt.  268, 
and  the  notes  thereto  of  Mr.  Ewell  in  his  Leading  Cases  on  Infancy 
and  Coverture,  119.  After  an  exhaustive  review  of  the  cases,  this 
author  says:  "  The  true  doctrine,  and  the  one  supported  by  the 
weight  of  authority  (at  least  in  the  United  States),  would  seem  to 
be  that,  where  an  infant  disaffirms  his  executed  contract  after  arriv- 
ing at  age,  and  seeks  a  recovery  of  the  consideration  moving  from 
him,  and  where  the  specific  consideration  received  by  him  remains 
in  his  hands  in  specie  at  the  time  of  the  disaffirmance,  and  is  capa- 
ble of  return,  it  must  be  returned  by  him;  but  if  he  has  during  in- 
fancy wasted,  sold  or  otherwise  disposed  of,  or  ceased  to  possess 
the  consideration,  and  has  none  of  it  in  his  hands  in  kind  on  arriv- 
ing at  majority,  he  is  not  liable  therefor,  and  may  disaffirm  without 
tendering  or  accounting  for  such  consideration." 

This  statement  of  the  law,  supported  as  it  is,  not  only  by  the 
greater  weight  of  authority,  but  also  of  reason,  meets  with  our  full 
approval.  There  is,  however,  much  conflict  in  the  decisions  of  the 
different  states,  greater,  perhaps,  than  upon  any  other  question 
connected  with  the  law  of  infancy  (Met.  Cont.  76);  but  we  deem  it 
unnecessary  to  attempt  to  review  or  discuss  them,  for  the  very  good 
reason  that  it  has  been  done  with  thoroughness  and  ability  by  the 
authors  just  referred  to. 


AVOIDANCE   OF   CONTRACTS.  427 

See,  also,  the  notes  of  Mr.  Ewell  to  the  recent  case  of  Adams  v. 
Beall,  decided  by  the  Maryland  Court  of  Appeals,  26  Am.  L. 
Reg    760. 

We  have  been  cited  by  counsel  for  the  defendant  below  to  a  num- 
ber of  the  previous  decisions  of  this  court,  supposed  to  affect  the 
rights  of  the  plaintiff  to  recover;  but  a  careful  examination  will  dis- 
close that  such  is  not  the  case.  In  Starr  v.  Wright,  20  Ohio  St.  97, 
a  conveyance  had  been  made  by  a  father  to  his  minor  son,  it  being 
without  any  consideration,  and  intended  to  defraud  creditors;  and, 
during  minority,  the  son  had  reconveyed  to  the  father,  to  enable  him 
to  raise  money  and  pay  his  creditors,  who  for  a  full  consideration  then 
conveyed  to  the  defendant.  The  court  denied  the  right  of  the  son, 
on  arriving  at  age,  to  disaffirm  the  deed  of  reconveyance.  Being  the 
voluntary  grantee  of  his  father,  the  son  had  done  no  more  than  was 
his  moral  duty  to  do,  and  what  he  might  have  been  compelled  to  do 
in  favor  of  creditors  and  purchasers.  The  court  applied  the  maxim 
that  infancy  is  a  shield  and  not  a  sword.  The  case  is  quite  analo- 
gous in  principle  to  the  leading  one  of  Zouch  v.  Parsons,  3  Burr. 
1794,  decided  by  Lord  Mansfield  in  1765.  It  was  there  held  that 
where  an  infant  does  what  he  might  have  been  compelled  by  a  court 
of  equity  to  do,  he  cannot  afterwards  disaffirm  his  act.  In  Harner 
v.  Dipple,  31  Ohio  St.  72,  the  question  was  whether  an  undertaking 
executed  by  an  infant  for  stay  of  execution  was  void  or  only  void- 
able. The  court  held  that  it  was  voidable  only,  and  might  therefore 
be,  as  it  had  been,  affirmed  by  the  infant  on  arriving  at  age.  In 
Curtiss  V.  McDougall,  26  Ohio  St.  67,  it  appears  an  infant  had  pur- 
chased a  team  of  mules,  and  at  the  same  time  had  executed  a  mort- 
gage on  them  to  secure  the  purchase-money.  He  afterwards  sold 
the  property  to  his  father,  who  brought  an  action  in  replevin  against 
an  assignee  of  the  mortgage  to  recover  possession.  The  claim  was 
based  on  the  theory  that,  by  the  subsequent  sale  of  the  mortgaged 
property,  the  infant  had  disaffirmed  the  mortgage,  as  he  would  have 
a  right  to  do.  It  is  difficult  to  see  how  the  sale  of  the  property  pur- 
chased could  be  treated  as  a  disaffirmance  of  the  contract  by  which 
he  had  acquired  it;  it  was  rather  an  affirmance  than  a  disaffirmance 
of  that  contract,  and  entirely  consistent  with  the  existence  of  the 
mortgage  that  he  had  given  to  secure  the  payment  of  the  purchase- 
money.  Again,  there  was  no  positive  disaffirmance  by  the  infant,  the 
claim  being  made  by  a  third  person,  his  grantee,  although  the  rule  is 
well  settled  that  the  privilege  is  personal  to  the  infant,  and  is  not 
available  to  third  persons,  i  Par.  Cont.  329.  But  the  court  placed 
its  decision  upon  the  broader  ground,  that  it  was  not  within  the  privi- 
lege of  the  infant  to  disaffirm   the  security   he    had  given   for   the 


428  INFANCY. 

purchase-money,  without  also  avoiding  the  purchase,  saying  that, 
"  In  such  case  if  the  infant  would  rescind  a  part,  he  must  rescind 
the  whole  contract,  and  thereby  restore  to  the  vendor  the  title  ac- 
quired by  the  purchase;  "  again  applying  the  principle  that  infancy 
may  be  used  as  a  shield  but  not  as  a  sword.  So  that  the  claim  of 
the  plaintiff  in  replevin  defeated  his  right  to  recover,  as  a  disaffirm- 
ance of  the  mortgage  would  necessarily  have  divested  the  title  by 
which  he  claimed  the  property. 

It  is  apparent  that  none  of  these  cases,  when  rightly  considered, 
affect  the  right  of  the  plaintiff  to  disaffirm  the  purchase  made  of  the 
decedent,  and  to  recover  the  consideration  paid.  Neither  he,  nor 
any  one  claiming  under  him,  makes  any  claim  to  the  property  pur- 
chased. By  his  disaffirmance  the  title  has  been  restored  to  the 
estate  of  the  vendor,  and  the  property,  or  its  value,  may  be  recovered 
by  the  administrator,  if  it  was  wrongfully  taken  by  the  sheriff  under 
the  execution  against  Everett. 

Judgment  affirmed. 


JOHNSON  V.  NORTHWESTERN   MUT.  LIFE   INS.  CO. 

56  Minn.  365.— 1894. 

Appeal  by  the  defendant,  the  Northwestern  Mutual  Life  Insurance 
Company,  from  an  order  of  the  District  Court  of  Hennepin  County, 
Seagrave  Smith,  J.,  made  August  16,  1893,  overruling  its  demurrer 
to  the  complaint. 

On  October  25,  1888,  the  defendant  insured  the  life  of  the  plain- 
tiff, Martin  C.  Johnson  then  of  Stoughton,  Wis.,  in  the  sum  of 
$1,000.  By  its  policy  it  agreed  to  pay  him  that  sum  twenty  years 
thereafter,  or  in  case  of  his  death  meantime  to  pay  it  to  his  representa- 
tives or  assigns  sixty  days  after  due  proof  of  his  decease.  After  ten 
years  he  was  to  share  in  the  surplus  profits  of  the  company  arising 
from  the  policy.  After  three  or  more  annual  premiums  were  paid 
he  was  entitled  to  a  paid-up,  non-participating  policy  for  as  many 
twentieth  parts  of  the  $1,000  as  he  had  paid  annual  premiums.  He 
paid  $23.29  on  that  date  and  ageed  to  pay  a  like  sum  every  six 
months  thereafter.  He  was  then  but  seventeen  years  of  age.  He 
paid  seven  of  these  semi-annual  installments,  in  all  $186.32.  On 
December  19,  1892,  immediately  after  he  became  of  age,  he  served 
written  notice  on  the  insurance  company  that  he  elected  to  avoid  the 
policy  and  offered  to  return  it  and  demanded  a  return  of  the  money 
he  had  paid.  It  was  not  repaid,  and  he  soon  after  brought  this  action 
to  recover  it.     His  complaint  stated  these  facts  and  a  copy  of  the 


AVOIDANCE    OF   CONTRACTS.   .  429 

policy  was  attached.  Defendant  demurred  on  the  ground  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.     The  demurrer  was  overruled  and  defendant  appeals. 

Mitchell,  J.  This  case  was  argued  and  decided  at  the  last  term 
of  this  court.  A  reargument  was  granted  for  the  reasons  that 
though  the  amount  was  small  the  legal  principles  involved  were  im- 
portant; the  time  permitted  for  argument  under  our  rules  was  brief; 
the  case  was  decided  near  the  end  of  the  term,  without,  perhaps,  the 
degree  of  consideration  that  its  importance  demanded;  and,  on 
further  reflection,  we  are  not  satisfied  that  our  decision  was  correct. 

The  former  opinion  laid  down  the  following  propositions,  to  which 
we  still  adhere,  (i)  That  the  contract  of  insurance  was  of  benefit 
to  the  infant  himself,  and  was  not  a  contract  for  the  benefit  of  third 
parties.  (2)  The  contract,  so  far  as  appears  on  its  face,  was  the 
usual  and  ordinary  one  for  life  insurance,  on  the  customary  terms, 
and  was  a  fair  and  reasonable  one,  and  free  from  any  fraud,  unfair- 
ness, or  undue  influence  on  the  part  of  the  defendant,  unless  the  con- 
trary is  to  be  presumed  from  the  fact  that  it  was  made  with  the 
infant. 

It  is  not  correct,  however,  to  say  that  the  plaintiff  has  received  no 
benefit  from  the  contract,  or  that  the  defendant  has  parted  with 
nothing  of  value  under  it.  True,  the  plaintiff  has  received  no 
money,  and  the  defendant  has  paid  none  to  the  plaintiff;  but  the 
life  of  the  former  was  insured  for  four  years,  and  if  he  had  died  dur- 
ing that  time  the  defendant  would  have  had  to  pay  the  amount  of  the 
policy  to  his  estate.  The  defendant  carried  the  risk  all  that  time, 
and  this  is  the  essence  of  the  contract  of  insurance.  Neither  does 
it  follow  that  the  risk  has  cost  the  defendant  nothing  in  money,  be- 
cause plaintiff  himself  was  not  one  of  those  insured  who  died.  The 
case  is,  therefore,  one  of  a  voidable  or  rescindable  contract  of  an 
infant,  partly  performed  on  both  sides,  the  benefits  of  which  the 
infant  has  enjoyed,  but  which  he  cannot  return,  and  where  there  is 
no  charge  of  fraud,  unfairness,  or  undue  influence  on  the  part  of  the 
other  party,  unless,  as  already  suggested,  it  is  to  be  presumed  from 
the  fact  that  the  contract  was  made  with  an  infant. 

The  question  is,  can  the  plaintiff  recover  back  what  he  has  paid, 
assuming  that  the  contract  was  in  all  respects  fair  and  reasonable? 
The  opinion  heretofore  filed  held  that  he  can.  Without  taking  time 
to  cite  or  discuss  any  of  our  former  decisions,  it  is  sufficient  to  say 
that  none  of  them  commit  this  court  to  such  a  doctrine.  That  such 
a  rule  goes  further  than  is  necessary  for  the  protection  of  the  infant, 
and  would  often  work  gross  injustice  to  those  dealing  with  him,  is, 
to  our  minds,  clear.     Suppose  a  minor  engaged  in  agriculture  should 


430  INFANCY. 

hire  a  man  to  work  on  his  farm,  and  pay  him  reasonable  wages  for 
liis  services.  According  to  this  rule,  the  minor  might  recover  back 
what  he,  paid,  although  retaining  and  enjoying  the  fruits  of  the  other 
man's  labor.  Or,  again,  suppose  a  man  engaged  in  mercantile  bus- 
iness with  a  capital  of  $5,000,  should  from  time  to  time,  buy  and  pay 
for  $100,000  worth  of  goods,  in  the  aggregate,  which  he  had  sold, 
and  had  got  his  pay.  According  to  this  doctrine,  he  could  recover 
back  the  $100,000  which  he  had  paid  to  the  various  parties  from 
whom  he  had  bought  the  goods.  Not  only  would  such  a  rule  work 
great  injustice  to  others,  but  it  would  be  positively  injurious  to  the 
infant  himself.  The  policy  of  the  law  is  to  shield  or  protect  the 
infant,  and  not  to  bar  him  from  the  privilege  of  contracting. 

But,  if  the  rule  suggested  is  to  obtain,  there  is  no  footing  on 
which  an  adult  can  deal  with  him,  except  for  necessaries.  Nobody 
could  or  would  do  any  business  with  him.  He  could  not  get  his  life 
insured.  He  could  not  insure  his  property  against  fire.  He  could 
not  hire  servants  to  till  his  farm.  He  could  not  improve  or  keep  up 
his  land  or  buildings.  In  short,  however  advantageous  other  con- 
tracts might  be  to  him,  or  however  much  capital  he  might  have,  he 
could  do  absolutely  nothing,  except  to  buy  necessaries,  because 
nobody  would  dare  to  contract  with  him  for  anything  else.  It  can- 
not be  that  this  is  the  law.     Certainly,  it  ought  not  to  be. 

The  following  propositions  are  well  settled,  everywhere,  as  to  the 
rescindable  contracts  of  an  infant,  and  in  that  category  we  include 
all  contracts  except  for  necessaries: 

First.  That,  in  so  far  as  the  contract  is  executory  on  part  of 
an  infant,  he  may  always  interpose  his  infancy  as  a  defence  to 
an  action  for  its  enforcement.  He  can  always  use  his  infancy  as  a 
shield. 

Second.  If  the  contract  has  been  wholly  or  partly  performed  on 
his  part,  but  is  wholly  executory  on  part  of  the  other  party,  the 
minor  having  received  no  benefits  from  it,  he  rnay  recover  back  what 
he  has  paid  or  parted  with. 

Third.  Where  the  contract  has  been  wholly  or  partly  performed  on 
both  sides,  the  infant  may  always  rescind  and  recover  back  what  he 
has  paid,  upon  restoring  what  he  has  received. 

Fourth.  A  minor,  on  arriving  at  full  age,  may  avoid  a  convey- 
ance of  his  real  estate  without  being  required  to  place  the  grantee  in 
statu  quo,  although  a  different  rule  has  sometimes  been  adopted 
by  courts  of  equity  when  the  former  infant  has  applied  to  them  for 
aid  in  avoiding  his  deeds.  Whether  this  distinction  between  convey- 
ances of  real  property  and  personal  contracts  is  founded  on  a  techni- 
cal   rule,    or    upon    considerations    of    policy   growing    out    of    the 


AVOIDANCE    OF   CONTRACTS. 


431 


difference  between  real  and  personal  property,  it  is  not  necessary 
here  to  consider. 

Fifth.  Where  the  contract  has  been  wholly  or  partly  performed  on 
both  sides,  the  infant,  if  he  sues  to  recover  back  what  he  has  paid, 
must  always  restore  what  he  has  received,  in  so  far  as  he  still  retains 
it  in  specie. 

Sixth.  The  courts  will  always  grant  an  infant  relief  where  the 
other  party  has  been  found  guilty  of  fraud  or  undue  influence.  As 
to  what  would  constitute  a  sufficient  ground  for  relief  under  this 
head,  and  what  relief  the  courts  would  grant  in  such  cases,  we  will 
refer  to  hereafter. 

But  suppose  that  the  contract  is  free  from  all  elements  of  fraud, 
unfairness,  or  overreaching,  and  the  infant  has  enjoyed  the  benefits 
of  it,  but  has  spent  or  disposed  of  what  he  has  received,  or  the 
benefits  received  are,  as  in  this  case,  of  such  a  nature  that  they  cannot 
be  restored.  Can  he  recover  back  what  he  has  paid?  It  is  well 
settled  in  England  that  he  cannot.  This  was  held  in  the  leading 
case  of  Holmes  v.  Blogg,  8  Taunt.  508,  approved  as  late  as  1890  in 
Valentini  \.  Canalt,  24  Q.  B.  Div.  166.  Some  obiter  remarks  of  the 
chief  justice  in  Holmes  v.  Blogg,  to  the  effect  that  an  infant  could 
never  recover  back  money  voluntarily  paid,  were  too  broad,  and 
have  often  been  disapproved  —  a  fact  which  has  sometimes  led  to  the 
erroneous  impression  that  the  case  itself  has  been  overruled.  Corpe 
v.  Overton^  10  Bing.  252  (decided  by  the  same  court),  held  that  the 
infant  might  recover  back  what  he  had  voluntarily  paid,  but  on 
the  ground  that  the  contract  in  that  case  remained  wholly  executory 
on  part  of  the  other  party,  and  hence  the  infant  has  never  enjoyed 
its  benefits. 

In  Chitty  on  Contracts  (volume  i,  p.  222),  the  law  is  stated  in 
accordance  with  the  decision  in  Holmes  v.  Blogg.  Leake,  — a  most 
accurate  writer  —  in  his  work  on  Contracts  (page  553),  sums  up  the 
law  to  the  same  effect.  In  this  country.  Chancellor  Kent  (2  Kent, 
Com.  240),  and  Reeves  in  his  work  on  Domestic  Relations  (chap- 
ters 2  and  3,  tit.  "  Parent  and  Child")  state  the  law  in  exact  accord- 
ance with  what  we  term  the  "  English  rule."  Parsons,  in  his  work 
on  Contracts  (volume  i,  p.  322),  undoubtedly  states  the  law  too 
broadly  in  omitting  the  qualification,  "  and  enjoys  the  benefit  of  it." 

At  least  a  respectable  minority  of  the  American  decisions  are  in 
full  accord  with  what  we  have  termed  the  "  English  rule."  See, 
among  others,  Riley  v.  Mallory,  33  Conn.  206;  Adams  v.  Beall,  67 
Md.  53  (8  Atl.  664);  Breed  v.  yudd,  i  Gray,  455.  But  many  — 
perhaps  a  majority  —  of  the  American  decisions,  apparently  thinking 
that  the  English  rule  does  not  sufficiently  protect  the  infant,  have 


432  INFANCY. 

modified  it;  and  some  of  them  seem  to  have  wholly  repudiated  it, 
and  to  hold  that,  although  the  contract  was  in  all  respects  fair  and 
reasonable,  and  the  infant  had  enjoyed  the  benefits  of  it,  yet  if  he 
had  spent  or  parted  with  what  he  had  received,  or  if  the  benefits  of 
it  were  of  such  a  nature  that  they  could  not  be  restored,  still  he 
might  recover  back  what  he  had  paid.  The  problem  with  the  courts 
seems  to  have  been,  on  the  one  hand,  to  protect  the  infant  from 
the  improvidence  incident  to  his  youth  and  inexperience,  and  how, 
on  the  other  hand,  to  compel  him  to  conform  to  the  principles  of 
common  honesty.  The  result  is  that  the  American  authorities  —  at 
least  the  later  ones  —  have  fallen  into  such  a  condition  of  conflict  and 
confusion  that  it  is  difficult  to  draw  from  them  any  definite  or  uni- 
form rule. 

The  dissatisfaction  with  what  we  have  termed  the  "  English  rule  " 
seems  to  be  generally  based  upon  the  idea  that  the  courts  would  not 
grant  an  infant  relief,  on  the  ground  of  fraud  or  undue  influence, 
except  where  they  would  grant  it  to  an  adult  on  the  same  grounds, 
and  then  only  on  the  same  conditions.  Many  of  the  cases,  we 
admit,  would  seem  to  support  this  idea.  If  such  were  the  law,  it  is 
obvious  that  there  would  be  many  cases  where  it  would  furnish  no 
adequate  protection  to  the  infant.  Cases  may  be  readily  imagined 
where  an  infant  may  have  paid  for  an  article  several  times  more 
than  it  was  worth,  or  where  the  contract  was  of  an  improvident 
character,  calculated  to  result  in  the  squandering  of  his  estate,  and 
that  fact  was  known  to  the  other  party;  and  yet  if  he  was  an  adult, 
the  court  would  grant -him  no  relief,  but  leave  him  to  stand  the  con- 
sequence of  his  own  foolish  bargain.  But  to  measure  the  right  of 
an  infant  in  such  cases  by  the  same  rule  that  would  be  applied  in 
the  case  of  an  adult  would  be  to  fail  to  give  due  weight  to  the  dis- 
parity between  the  adult  and  the  infant,  or  to  apply  the  proper 
standard  of  fair  dealing  due  from  the  former  to  the  latter.  Even  as 
between  adults,  when  a  transaction  is  assailed  on  the  ground  of 
fraud,  undue  influence,  etc.,  their  disparity  in  intelligence  and 
experience,  or  in  any  other  respect  which  gives  one  an  ascendency 
over  the  other,  or  tends  to  prevent  the  latter  from  exercising  an 
intelligent  and  unbiased  judgment,  is  always  a  most  vital  considera- 
tion with  the  courts.  When  a  contract  is  improvident  and  unfair, 
courts  of  equity  have  frequently  inferred  fraud  from  the  mere  dis- 
parity of  the  parties. 

If  this  is  true  as  to  adults,  the  rule  ought  certainly  to  be  applied 
with  still  greater  liberality  in  favor  of  infants,  whom  the  law  deems 
so  incompetent  to  care  for  themselves  that  it  holds  them  incapable 
of  binding  themselves  by  contract,  except  for  necessaries.     In  view 


AVOIDANCE   OF  CONTRACTS.       *  433 

of  this  disparity  of  the  parties,  thus  recognized  by  law,  every  one 
who  assumes  to  contract  with  an  infant  should  be  held  to  the  utmost 
good  faith  and  fair  dealing.  We  further  think  that  this  disparity  is 
such  as  to  raise  a  presumption  against  the  fairness  of  the  contract, 
and  to  cast  upon  the  other  party  the  burden  of  proving  that  it  was  a 
fair  and  reasonable  one,  and  free  from  any  fraud,  undue  influence  or 
overreaching. 

A  similar  principle  applies  to  all  the  relations,  where,  from  dis- 
parity of  years,  intellect,  or  knowledge,  one  of  the  parties  to  the  con- 
tract has  an  ascendency  which  prevents  the  other  from  exercising  an 
unbiased  judgment, —  as,  for  example,  parent  and  child,  husband  and 
wife,  guardian  and  ward.  It  is  true  that  the  mere  fact,  that  a  person 
is  dealing  with  an  infant  creates  no  "  fiduciary  relation  ' '  between  them 
in  the  proper  sense  of  the  term,  such  as  exists  between  guardian  and 
ward;  but  we  think  that  he  who  deals  with  an  infant  should  be  held 
to  substantially  the  same  standard  of  fair  dealing  and  be  charged 
with  the  burden  of  proving  that  the  contract  was  in  all  respects  fair 
and  reasonable,  and  not  tainted  with  any  fraud,  undue  influence,  or 
overreaching  on  his  part.  Of  course,  in  this,  as  in  all  other  cases, 
the  degree  of  disparity  between  the  parties,  in  age  and  mental  capac- 
ity, would  be  an  important  consideration.  Moreover,  if  the  con- 
tract was  not  in  all  respects  fair  and  reasonable,  the  extent  to  which 
the  infant  shall  recover  would  depend  on  the  nature  and  extent  of 
the  element  of  unfairness  which  characterized  the  transaction. 

If  the  party  dealing  with  the  infant  was  guilty  of  actual  fraud  or 
bad  faith,  we  think  the  infant  should  be  allowed  to  recover  back  all 
he  had  paid,  without  making  restitution,  except,  of  course,  to  the 
extent  to  which  he  still  retained  in  specie  what  he  had  received. 
Such  a  case  would  be  a  contract  essentially  improvident,  calculated  to 
facilitate  the  squandering  of  the  infant's  estate,  and  which  the  other 
party  knew  or  ought  to  have  known  to  be  such,  for  to  make  such  a 
contract  at  all  with  an  infant  would  be  fraud.  But  if  the  contract 
was  free  from  any  fraud  or  bad  faith,  and  otherwise  reasonable, 
except  that  the  price  paid  by  the  infant  was  in  excess  of  the  value  of 
what  he  received,  his  recovery  should  be  limited  to  the  difference 
between  what  he  paid  and  what  he  received.  Such  cases  as  Medbury 
V.  Watrous,  7  Hill,  no;  Sparman  v.  Keirn,  83  N.  Y.  245;  and  Heath 
v.  Stevens,  48  N.  H.  251, —  really  proceed  upon  this  principle,  although 
they  may  not  distinctly  announce  it.  The  objections  to  this  rule 
are,  in  our  opinion,  largely  imaginary,  for  we  are  confident  that  in 
practice  it  can  and  will  be  applied  by  courts  and  juries  so  as  to  work 
out  substantial  justice. 

Our  conclusion  is  that  where  the  personal  contract  of  an  infant, 
f  Domestic  Relations — 28.] 


434  INFANCY. 

beneficial  to  himself,  has  been  wholly  or  partly  executed  on 
both  sides  but  the  infant  has  disposed  of  what  he  has  received,  or 
the  benefits  recovered  by  him  are  such  that  they  cannot  be  restored, 
he  cannot  recover  back  what  he  has  paid,  if  the  contract  was  a  fair 
and  reasonable  one,  and  free  from  any  fraud  or  bad  faith  on  the  part 
of  the  other  party,  but  that  the  burden  is  on  the  other  party  to  prove 
that  such  was  the  character  of  the  contract;  that,  if  the  contract  in- 
volved the  element  of  actual  fraud  or  bad  faith,  the  infant  may 
recover  all  he  paid  or  parted  with,  but  if  the  contract  involved 
no  such  elements,  and  was  otherwise  reasonable  and  fair,  except  that 
what  the  infant  paid  was  in  excess  of  the  value  of  what  he  received, 
his  recovery  should  be  limited  to  such  excess.  It  seems  to  us  that 
this  will  sufficiently  protect  the  infant,  and  at  the  same  time  do  jus- 
tice to  the  other  party.  Of  course,  in  speaking  of  contracts  bene- 
ficial to  the  infant,  we  refer  to  those  that  are  deemed  such  in 
contemplation  of  law. 

Applying  these  rules  to  the  case  in  hand,  we  add  that  life  insur- 
ance in  a  solvent  company  at  the  ordinary  and  usual  rates,  for  an 
amount  reasonably  commensurate  with  the  infant's  estate,  or  his 
financial  ability  to  carry  it,  is  a  provident,  fair  and  reasonable  con- 
tract, and  one  which  is  entirely  proper  for  an  insurance  company  to 
make  with  him,  assuming  that  it  practices  no  fraud  or  other  unlawful 
means  to  secure  it;  and  if  such  should  appear  to  be  the  character  of 
this  contract,  the  plaintiff  could  not  recover  the  premiums  which  he 
has  paid  in,  so  far  as  they  were  intended  to  cover  the  current  annual 
risk  assumed  by  the  company  under  its  policy. 

But  it  appears  from  the  face  of  the  policy  that  these  premiums 
covered  something  more  than  this.  The  policy  provides  that  after 
payment  of  three  or  more  annual  premiums  the  insured  will  be  entitled 
to  a  paid-up,  non-participating  policy  for  as  many  twentieths  of  the 
original  sum  insured  ($i,ooo)  as  there  have  been  annual  premiums  so 
paid.  The  complaint  alleges  the  payment  of  four  annual  premiums. 
Hence,  the  plaintiff  was  entitled,  upon  surrender  of  the  original 
policy,  to  a  paid-up,  non-participating  policy  for  $200;  and  it  there- 
fore seems  to  us  that,  having  elected  to  rescind,  he  was  entitled  to 
recover  back,  in  any  event,  the  present  cash  "  surrender  "  value  of 
such  a  policy.  For  this  reason,  as  well  as  that  the  burden  was  on 
the  defendant  to  prove  the  fair  and  honest  character  of  the  contract, 
the  demurrer  to  the  complaint  was  properly  overruled.  The  result 
arrived  at  in  the  former  opinion  was  therefore  correct,  and  is  adhered 
to,  although  on  somewhat  different  grounds. 

Order  affirmed.' 

GiLFiLLAN,  C.  J.  dissented. 

'  Contra,  on  a  like  state  of  facts,  Simpson  v.  Co.,  184  Mass.  348. 


AVOIDANCE    or-    CONTRACTS.  435 


GREEN  V.   GREEN. 

69  N.  Y.  553-  — 1877- 

This  was  an  action  of  trespass  upon  lands.  The  defendant,  among 
other  things,  pleaded  title.  The  facts  found  were  substantially  as 
follows:  On  the  8th  day  of  March,  1866,  the  defendant,  being  then 
the  owner  of  the  premises  in  question,  and  plaintiff  being  an  infant 
of  the  age  of  about  eighteen  years,  in  consideration  of  the  sum  of 
$400  to  him  paid  by  the  plaintiff,  sold  and  conveyed  to  the  plain- 
tiff, who  was  his  father  and  knew  his  infancy  and  actual  age,  the  said 
premises,  and  thereupon  entered  into  possession  thereof  and  has 
since  occupied  the  same.  Prior  to  the  defendant's  obtaining  his 
majority,  he  had  wasted  or  otherwise  ceased  to  possess  the  purchase 
price  of  said  premises,  and  at  that  time  was  possessed  of  no  property 
whatever  excepting  said  land.  On  or  about  May  i,  1873,  the 
defendant  re-entered  upon  said  premises  with  the  purpose  and  with 
notice  of  his  intent  to  disaffirm  the  deed,  and  the  alleged  trespasses 
were  those  done  in  and  about  such  re-entry. 

Church,  Ch.  J.  The  important  question  in  this  case  is  whether  it 
was  necessary  for  the  defendant  to  restore  the  consideration  received 
for  the  transfer  of  the  land  to  the  plaintiff  to  entitle  him  to  rescind 
the  contract.  The  defendant  is  a  son  of  the  plaintiff.  He  conveyed 
to  the  plaintiff  the  premises  in  question  when  under  the  age  of 
twenty-one  years,  for  which  he  received  the  sum  of  $400.  It 
appeared  affirmatively  that  the  son  had  used  up,  lost,  or  squandered 
the  money  before  he  became  of  age,  and  had  no  part  of  it,  nor  any 
other  property  except  the  land  at  the  time  of  arriving  at  age.  After 
a  careful  examination  of  the  authorities  and  the  conflicting  opinions 
below,  we  are  inclined  to  concur  with  the  opinion  of  Gilbert,  J.,  in 
the  affirmance  of  the  judgment.  We  do  not  deem  it  profitable  to 
review  the  authorities  upon  the  question,  and  do  not  intend  to  extend 
our  decision  beyond  the  principal  facts  involved  in  this  case. 

There  are  expressions  of  judges,  and  general  rules  laid  down  by 
text-writers,  and  some  cases  which  seem  to  favor  the  doctrine  con- 
tended for  by  the  appellant,  but  in  nearly  all  of  them  there  is  a  mani- 
fest distinction  in  the  facts.  The  weight  of  authority  is  to  the 
contrary  effect.  10  Peters  U.  S.  58,  74;  97  Mass.  508;  6  Gray,  279; 
27  Vt.  268;  100  Mass.  174.  These  and  like  authorities,  we  think, 
accord  with  the  general  principles  of  law  for  the  protection  of 
infants.  The  right  to  repudiate  is  based  upon  the  incapacity  of  the 
infant  to  contract,  and  that  incapacity  applies  as  well  to  the  avails 
as  to  the  property  itself,  and  when  the  avails  of  the  property  are 


436  INFANCY. 

iniprovidently  spent  or  lost  by  speculation  or  otherwise  during 
minority,  the  infant  should  not  be  held  responsible  for  an  inability 
to  restore  them.  To  do  so  would  operate  as  a  serious  restriction 
upon  the  right  of  an  infant  to  avoid  his  contract,  and  in  many  cases 
would  destroy  the  right  altogether.  A  person  purchasing  real 
estate  of  an  infant,  knowing  the  fact,  and  especially  the  father,  must 
and  ought  to  take  the  risk  of  the  avoidance  of  the  contract  by  the 
infant  after  arriving  at  maturity.  The  right  to  rescind  is  a  legal 
right  established  for  the  protection  of  the  infant,  and  to  make  it 
dependent  upon  performing  an  impossibility,  which  impossibility  has 
resulted  from  acts  which  the  law  presumes  him  incapable  of  per- 
forming, would  tend  to  impair  the  right  and  withdraw  the  protection. 
Both  upon  authority  and  principle  we  think  a  restoration  of  the  con- 
sideration could  not  be  exacted  as  a  condition  to  a  rescission  on  the 
part  of  the  defendant. 

Mere  acquiescence  for  three  years  after  arriving  at  age  without 
any  affirmative  act  was  not  a  ratification.  11  J.  R.  539;  14  Id.  124; 
23  Maine  R.  517.  The  entry  made  by  the  defendant  in  this  case  for 
the  purpose  of  disaffirming  the  contract  with  notice  of  such  intention 
was  sufficient  to  entitle  him  to  recover.      17  Wend.  120, 

The  judgment  must  be  affirmed. 

All  concur;  Andrews,  J.,  absent. 

Judgment  affirmed. 


RICE  V.  BUTLER. 


160  N.  Y.   578.  —1899. 

Haight,  J.  The  appeal  in  this  case  is  based  upon  the  certificate 
of  the  Appellate  Division  to  the  effect  that  questions  of  law  are 
involved  which  ought  to  be  reviewed  by  this  court.  The  action  was 
brought  in  the  Municipal  Court  of  Syracuse  to  recover  the  sum  of 
$26.25,  P^id  by  the  plaintiff,  a  minor  seventeen  years  of  age,  upon  a 
contract  for  the  purchase  of  a  bicycle.  The  contract  price  was  $45 ; 
$15  were  paid  upon  the  execution  of  the  contract,  and  the  remainder 
was  to  be  paid  in  weekly  installments  of  $1.25.  The  plaintiff  pur- 
chased the  wheel  in  June  and  used  it  until  about  the  20th  of 
September  and  then  returned  it  to  the  defendant,  asserting  that  she 
had  been  defrauded,  and  demanded  repayment  of  the  amount  that 
she  had  paid  upon  the  contract.  The  defendant  took  the  wheel,  but 
refused  to  return  the  money,  claiming  that  the  use  of  the  wheel  and 
its  deterioration  in  value  exceeded  the  sum  paid.  Upon  the  trial 
evidence  was  submitted  on  behalf  of  the  defendant  tending  to  show 


AVOIDANCE   OF   CONTRACTS.  437 

that  the  use  of  the  wheel  and  its  deterioration  in  value  equaled  or 
exceeded  the  amount  that  had  been  paid  upon  the  contract.  The 
trial  court  found  in  favor  of  the  defendant,  thus  establishing  the 
fact  that  there  had  been  no  fraud  on  the  part  of  the  defendant  in 
making  the  contract. 

It  is  now  contended  that  the  contract  was  executory,  and  that 
being  such  the  plaintiff  had  the  right  to  rescind  and  recover  back 
the  amount  paid.  The  Appellate  Division  appears  to  have  taken 
this  view  of  the  case,  and  has  reversed  the  judgment.  The  question 
thus  presented  may  not  be  free  from  difficulty.  There  are  numerous 
authorities  bearing  upon  the  question,  but  they  are  not  in  entire 
harmony.  We  have  examined  them  with  some  care,  but  have  found 
none  in  this  court  which  appears  to  settle  the  question  now  pre- 
sented. We,  consequently,  are  left  free  to  adopt  such  a  rule  as  in 
our  judgment  will  best  promote  justice  and  equity.  The  contract  in 
this  case  in  its  entirety  must  be  held  to  be  executory;  for,  under  its 
terms,  payments  were  to  mature  in  the  future  and  the  title  was  only 
to  pass  to  the  minor  upon  making  all  of  the  payments  stipulated; 
but  in  so  far  as  the  payments  made  were  concerned  the  contract  was 
in  a  sense  executed,  for  nothing  further  remained  to  be  done  with 
reference  to  those  payments.  Kent,  in  his  Commentaries  (Vol.  2, 
page  240),  says:  "If  an  infant  pays  money  on  his  contract  and 
enjoys  the  benefit  of  it  and  then  avoids  it  when  he  comes  of  age  he 
cannot  recover  back  the  consideration  paid.  On  the  other  hand,  if 
he  avoids  an  executed  contract  when  he  comes  of  age  on  the  ground 
of  infancy,  he  must  restore  the  consideration  which  he  had  received. 
The  privilege  of  infancy  is  to  be  used  as  a  shield  and  not  as  a  sword. 
He  cannot  have  the  benefit  of  the  contract  on  one  side  without 
returning  the  equivalent  on  the  other." 

In  the  case  of  Gray  v.  Lessington,  2  Bosw.  257,  a  young  lady  during 
her  minority  had  purchased  a  quantity  of  household  furniture,  paying 
about  half  of  the  purchase  price,  and  had  given  her  note  for  the 
balance.  She  subsequently  rescinded  the  contract  and  sought  to 
recover  the  amount  that  she  had  paid.  She  had  had  the  use  of  the 
furniture  in  the  meantime,  and  it  was  held  that  she  must  account  for 
its  deterioration  in  value.  Woodruff,  J.,  in  delivering  the  opinion 
of  the  court,  says:  "When  it  becomes  necessary  for  an  infant  to  go 
into  a  court  of  equity,  to  cancel  her  obligations,  or  regain  the  pledge 
given  for  their  performance,  seeking  equity,  she  must  do  equity. 
Making  full  satisfaction  for  the  deterioration  of  the  property, 
arising  from  its  use,  is  doing  no  more.  Presumptively,  she  has 
derived  from  the  use  of  the  property  a  profit,  or  benefit,  equivalent 
to  such  deterioration." 


438  INFANCY. 

In  the  case  of  Mcdbury  v.  IVa/rous,  7  Hill,  1 10,  an  action  was 
brought  by  an  infant  to  recover  for  services  performed,  of  the  value 
of  $-jo.  The  defense  was  that  the  work  was  done  in  part  perform- 
ance of  a  covenant  to  purchase  of  the  defendant  a  house  and  lot  for 
the  sum  of  $600.  He  had  not  entered  into  the  possession  of  the 
house  and  lot  and  had  received  no  benefits  from  the  purchase.  It 
was  held  that  he  could  rescind  the  contract,  and,  having  received 
nothing  under  it,  he  could  recover  upon  a  quantum  fiieruit  for  the 
work  performed.  Beardsley,  J.,  in  delivering  the  opinion  of  the 
court,  refers  to  the  rule  laid  down  by  Chancellor  Kent,  and  then  to 
the  case  of  Holmes  v.  Blogg,  8  Taunt.  508,  and  says,  with  reference 
to  the  later  case:  "It  was  not  shown  what  had  been  the  value  of 
the  use  of  the  premises  demised,  while  the  infant  remained  in  pos- 
session. If  that  was  less  than  the  sum  paid  by  him,  it  may  well  be 
that  he  ought  to  have  recovered  the  difference."  It  will  thus  be 
seen  that  the  cases  to  which  we  have  alluded  recognize  the  principle 
which  we  think  ought  to  be  applied  to  this  case,  and  that  is,  that  the 
plaintiff,  having  had  the  use  of  the  bicycle  during  the  time  interven- 
ing between  her  purchase  and  its  return,  ought,  in  justness  and  in 
fairness,  to  account  for  its  reasonable  use  or  deterioration  in  value. 
Otherwise  she  would  be  making  use  of  the  privilege  of  infancy  as  a 
sword,  and  not  as  a  shield.  In  the  absence  of  wanton  injury  to  the 
property  the  value  of  the  use  would  be  deemed  to  include  the 
deterioration  in  value,  and,  under  the  evidence  in  this  case  and  as 
found  by  the  trial  court,  the  use  equaled  the  sum  paid.  Our 
attention  has  been  called  to  the  cases  of  Pyne  v.  Wood,  145  Mass. 
558,  and  McCarthy  v.  Henderson,  138  Mass.  310,  but  we  think  the 
rule  suggested  by  us  is  more  equitable  and  that  they  should  not  be 
followed. 

The  judgment  of  the  Appellate  Division  should  be  reversed  and 
that  of  the  trial  and  County  Court  affirmed,  with  costs,  and  the 
second,  third  and  fourth  questions  certified  to  us  answered  in  the 
affirmative.  An  answer  of  the  first  question  is  not  deemed  necessary 
further  than  intimated  in  the  opinion. 

All  concur. 

Judgment  reversed,  etc' 

'  Contra  on  a  like  state  of  facts.  Gillis  v.  Goodwin,  180  Mass.  140.  For  a 
review  of  the  New  York  cases,  see  the  prevailing  and  dissenting  opinions  io 
Rice  V.  Butler,  as  reported  in  the  court  below,  25  App.  Div.  388. 


AVOIDANCE   OF   CONTRACTS.  439 

DRUDE  V.  CURTIS. 

183  Mass.  317.  — 1903. 

Contract  for  $130  paid  by  the  plaintiff  when  an  infant  on  a  con- 
tract for  the  purchase  of  a  horse,  harness  and  buggy,  repudiated  by 
him  on  coming  of  age,  with  a  second  count  for  money  had  and 
received,  and  a  third  count,  added  by  amendment,  in  tort  for  the 
conversion  of  $130  paid  by  the  plaintiff  to  the  defendant.  Writ 
dated  July  31,  1900.  'The  case  was  tried  before  Bishop,  J.,  without 
a  jury.  It  appeared  that  the  plaintiff  and  defendant,  both  being 
minors,  entered  into  an  agreement  whereby  the  defendant  delivered 
to  the  plaintiff  a  horse,  harness  and  buggy,  and  the  plaintiff  agreed 
to  pay  therefor  $225  in  installments  at  stated  times,  the  title  to 
the  property  not  to  pass  until  the  whole  $225  was  paid.  The  plain- 
tiff paid  installments  amounting  to  $130.  He  then  came  of  age,  and 
three  days  later  brought  this  action  and  attached  the  horse,  harness 
and  buggy  as  the  property  of  the  defendant.  On  the  return  day  of 
the  writ  the  defendant  came  of  age.  The  defendant  had  spent  the 
1^130  before  the  date  of  the  writ.  The  judge  ruled  that  the  plaintiff 
could  not  recover  in  contract,  but  might  recover  in  tort  under  his 
declaration  as  amended,  for  the  conversion  of  $130  paid  to  the  defend- 
ant. He  found  for  the  plaintiff  in  the  sum  of  $145.60,  and  the 
defendant  alleged  exceptions. 

Hammond,  J.  Both  parties  being  infants  at  the  time  of  the  con- 
tract, either  could  avoid  it  without  a  return  of  the  consideration. 
But  neither  could  avoid  it  in  part.  He  must  avoid  it  wholly,  if  at 
all.  And  if  the  infant,  when  avoiding  the  contract,  has  in  his  hands 
any  of  the  specific  fruits,  the  act  of  avoiding  the  contract  by  which 
he  acquired  such  property  will  divest  him  of  all  right  to  retain  the 
same,  and  the  other  party  may  reclaim  it.  Chandler  v.  Simmons,  97 
Mass.  508,  514,  97  Am.  Rep.  117.  The  plaintiff,  who  was  the  buyer, 
sought  first  to  exercise  his  right  to  avoid,  and  brought  this  action  to 
recover  the  money,  and,  if  the  defendant  also  had  not  been  an  infant, 
he  would  have  had  no  defense,  upon  the  count  in  contract,  because 
the  law  would  have  implied  a  contract  upon  his  part  to  refund  the 
money.  But  the  difficulty  with  the  plaintiff's  case  is  that  the  defend- 
ant is  meeting  the  plaintiff  with  a  weapon  like  that  used  by  him, 
to  wit,  avoidance  of  a  contract  on  the  ground  of  infancy.  And  while 
the  infancy  of  the  plaintiff  is  a  shield  to  him,  it  does  not  prevent  the 
defendant  from  relying  upon  his  own  infancy  in  turn  as  a  shield  to 
him.  So  far  as  respects  the  right  of  the  defendant  to  take  advantage 
of  his  own  infancy,  it  is  immaterial  whether  the  plaintiff  be  an  infant 


440  INFANCY. 

or  an  adult.  Can  the  plaintiff  recover  in  this  action  the  money  paid 
by  him  to  the  defendant?  The  defendant  spent  it  before  the  plaintiff 
avoided  the  contract.  His  plea  of  infancy  is  a  complete  defense  to 
the  counts  in  contract.  So  the  court  ruled,  and  we  do  not  under- 
stand that  the  correctness  of  this  ruling  is  contested  by  the  plaintiff. 
If  at  the  time  the  plaintiff  elected  to  avoid  the  contract  the  defend- 
ant had  in  his  possession  the  same  money  which  he  received  from  the 
plaintiff,  then  since,  by  reason  of  the  avoidance,  the  defendant  had 
no  right  further  to  hold  it,  the  plaintiff  perhaps  might  have  main- 
tained replevin,  or,  upon  proper  proceedings  taken,  have  maintained 
trover  as  for  a  subsequent  conversion. 

The  plaintiff  contends  that  trover  w\\\  lie  even  if,  at  the  time  he 
avoided  the  contract,  the  money  had  been  spent.  But  one  great 
difficulty  upon  the  facts  in  this  case  is  to  find  any  conversion,  any 
tortious  dealing  with  the  money.  There  was  no  tortious  act  on  the 
part  of  the  defendant  in  obtaining  it.  It  was  paid  to  him  to  be  held 
and  used  by  him  as  his  own  money,  in  accordance  with  the  terms  of 
a  contract  which  is  not  claimed  to  have  had  in  it  any  element  of 
fraud.  There  was  nothing  tortious  in  that.  Having  received  it  as 
his  own  money,  he  spent  it  as  such,  and  all  this  the  plaintiff,  not  yet 
having  avoided  the  contract,  must  be  held  to  have  expected  and  con- 
sented to.  There  was,  therefore,  nothing  tortious  in  any  act  of  the 
defendant,  with  reference  to  the  money,  before  the  contract  was 
avoided.  Nor  has  the  defendant  been  guilty  of  any  tortious  act 
since,  unless  it  be  his  failure  to  refund  an  equal  sum  to  the  plaintiff; 
but  that  failure  at  the  most  can  be  considered  only  as  a  breach  of  an 
implied  contract,  and  this  the  law  permits  him  to  avoid.  To  hold 
that,  while  for  this  failure  to  pay  over  under  these  circumstances  he 
cannot  be  held  in  contract,  but  still  can  be  held  in  tort,  is  to  convert 
that  which  arises  out  of  a  contract  into  a  tort,  and  to  take  away  the 
shield  which  the  law  throws  around  the  infant  for  his  protection. 
Upon  this  theory  money  lent  to  an  infant  might  be  recovered.  The 
plaintiff  finds  himself  where  anyone  is  likely  to  be  who  places  money 
into  the  hands  of  an  infant  with  the  right  to  spend  it  as  his  own 
money,  and  the  right  has  been  exercised.  Upon  this  general  subject 
see  Slayton  v.  Barry,  175  Mass.  513,  56  N.  E.  574,  49  L.  R.  A.  560, 
78  Am.  St.  Rep.  510,  and  cases  cited;  Carr  v.  Clough,  26  N.  H.  280, 
59  Am.  Dec.  345- 

The  plaintiff  relies  upon  Walker  v.  Davis,  1  Gray,  506,  as  decisive 
in  favor  of  the  right  to  maintain  this  action,  but  an  examination  of 
the  case  will  show  that  the  ground  upon  which  the  decision  was 
based  in  no  way  conflicts  with  the  conclusion  to  which  we  have  come. 
In    that   case,  which    was    trover  for    the    conversion    of  a  cow,   it 


AVOIDANCE   OF   CONTRACTS.  44 1 

appeared  that  the  defendant,  an  infant,  plied  the  plaintiff,  who  was 
an  old  man,  with  liquor  until  he  became  drunk,  and  then  took 
advantage  of  the  plaintiff's  incompetent  condition  to  trade  for  a  cow. 
The  defendant  took  the  cow,  and  gave  his  note  in  payment.  When 
the  note  became  due,  the  plaintiff  brought  a  suit  upon  it,  in  which 
the  defendant  prevailed  upon  the  plea  of  infancy.  The  plaintiff  then 
brought  the  suit  in  trover.  The  defense  was  that  the  plaintiff  had 
waived  the  tort,  and  affirmed  the  contract,  and  also  that,  when  the 
note  fell  due,  the  defendant  had  sold  the  cow,  and  parted  with  all 
control  over  her.  The  court  held  the  action  maintainable,  disposing 
of  the  first  ground  of  the  defense  by  saying  that,  since  the  defendant 
also  had  avoided  the  contract,  the  plaintiff's  attempted  affirmance 
did  not  become  operative,  and,  as  to  the  second  ground,  that  there 
had  been  a  conversion,  and  consequently  trover  would  lie.  But  the 
conversion  relied  upon  was  not  the  sale  of  the  cow,  but  the  taking 
at  the  time  of  the  contract.  The  contract  was  voidable  by  the  plain- 
tiff upon  the  ground  of  fraud.  Upon  coming  to  his  senses,  the  plain- 
tiff might  have  rescinded  the  contract,  and,  without  any  demand, 
have  brought  trover  for  the  cow  upon  the  ground  that  she  had  been 
tortiously  taken  from  him  under  a  fraudulent  contract  {^Thurston  v. 
Blanchard,  22  Pick.  18,  t,t,  Am.  Dec.  700);  and  since,  at  the  time  of 
this  suit,  his  right  to  rescind  still  existed,  the  remedy  still  existed. 
And  the  plea  of  infancy  was  no  defence,  because,  in  the  language 
of  Thomas,  J.:  "The  defendant  obtained  the  possession  of  [the 
cow]  by  fraud,  a  fraud  to  which  infancy  would  constitute  no  de- 
fence." It  is  thus  seen  that  the  action  was  sustained  upon  the 
ground  that  the  original  taking,  being  fraudulent,  was  tortious.  No 
question  seems  to  have  been  made  as  to  whether  infancy  would  have 
been  a  defence  to  such  a  fraud.  The  court  assumed  that  it  would 
not  be  a  defence,  and,  having  so  assumed,  held  that  the  taking  of  the 
cow  at  the  time  of  the  contract  was  tortious.  Walker  v.  Davis  is 
therefore  no  authority  for  the  contention  that  the  subsequent  spend- 
ing of  the  money  by  the  defendant  in  this  case  was  tortious. 
Exceptions  sustained. 


44-  I-XFANCV. 

HAMILTON  V.  VAUGHAN-SHERRIN  ELECTRICAL 
ENGINEERING  COMPANY. 

[1894]  3  Ch.  589.      (Eng.) 

The  plaintiff,  while  an  infant,  applied  for  shares  in  a  company  and 
paid  the  amount  due  on  application.  The  shares  were  duly  allotted 
to  her,  and  she  paid  the  amount  due  on  allotment.  No  dividends 
were  received  by  her,  nor  did  she  attend  any  meetings  of  the  company. 
Six  weeks  after  allotment,  while  still  under  age,  she  repudiated  the 
contract,  and  asked  for  repayment  of  the  money  paid  by  her  to 
the  company.  She  subsequently  brought  an  action  to  recover  the 
money.  The  company  then  went  into  liquidation,  and  the  liquidator 
removed  her  name  from  the  register  of  shareholders. 

Stirling,  J.  The  case  now  comes  on  in  order  that  I  may  decide 
whether  or  not  the  plaintiff  is  entitled  to  a  return  of  jQGo  paid  by 
her  to  the  company.  This  is  claimed  on  the  ground  that  there  has 
been  a  total  failure  of  consideration. 

Three  cases  have  been  cited  before  me  on  this  point.  The  first 
is  Holmes  v.  Blogg,  8  Taunt.  508,  511.  There  the  plaintiff  brought 
an  action  to  recover  a  sum  paid  by  him  during  infancy  to  the  defend- 
ant, who  was  lessor  to  the  plaintiff  and  to  one  Taylor,  with  whom  the 
plaintiff  was  in  partnership.  The  lease  was  granted  to  the  plaintiff 
and  Taylor,  and  ^157  los.  was  paid  by  the  plaintiff  as  a  premium. 
Under  the  lease,  Taylor  and  the  plaintiff  occupied  the  premises  for 
three  months.  The  infant  afterwards  avoided  the  lease,  and  then 
brought  an  action  to  recover  the  premium.  Gibbs,  C.  J.,  in  deliver- 
ing the  judgment  of  the  court,  refers  to  an  expression  of  opinion  by 
Lord  Mansfield  in  the  House  of  Lords,  where  he  says:  "  If  an  infant 
pay  money  with  his  own  hand  without  a  valuable  consideration  for  it, 
he  cannot  get  it  back  again,"  and  it  was  held  that  the  infant  was  not 
entitled  to  recover.  In  Ex  parte  Taylor,  8  D.  M.  &  G.  254,  which 
was  a  case  of  a  very  similar  nature,  an  infant  had  entered  into  an 
agreement  for  a  partnership  and  paid  a  premium  on  entering.  He 
devoted  much  time  to  the  business,  and  received  an  allowance 
weekly,  amounting  altogether  to  ^172,  but  before  he  came  of  age 
he  disaffirmed  the  contract.  It  was  held  that  he  could  not  prove  for  the 
premium  in  the  bankruptcy  of  his  late  partner,  on  the  ground  that 
the  contract  had  been  part  performed  on  each  side,  and  the  considera- 
tion had  not  wholly  failed.  The  former  of  these  two  cases  was  con- 
sidered in  Corpe  v.  Overton,  10  Bing.  252.  In  that  case  the  plaintiff, 
while  an  infant,  signed  a  written  agreemenc  to  enter  into  a  partner- 
ship which  was  not  to  comm  j  ice  at  once,  but  at  a  future  date,  and  he 


AVOIDANCE    OF   CONTRACTS.  443 

paid  down  ^loo  as  deposit.  Between  the  date  of  the  agreement 
and  the  date  when  the  partnership  was  to  commence,  the  plaintiff 
came  of  age,  revoked  the  agreement,  and  rescinded  the  contract,  and 
brought  an  action  to  recover  the  deposit.  In  opposition  to  his  claim 
Holmes  v.  Blogg,  8  Taunt.  508  was  relied  upon,  but  the  whole  of  the 
judges  composing  the  court  distinguished  that  case.  Tindal,  C.  J., 
said,  10  Bing.  255:  "  In  Holmes  v.  Blogg,  the  infant  had  paid  ;j^i57 
as  his  share  of  the  consideration  for  a  lease  of  premises  in  which  he 
and  his  partner  carried  on  the  business  of  shoemaking.  They  occu- 
pied the  premises  from  March  till  June,  when  the  infant,  coming  of 
age,  dissolved  the  partnership,  relinquished  the  business,  and  sought 
to  recover  back  the  money  he  had  paid  the  lessor  for  his  lease.  In 
that  case,  therefore,  the  sum  of  money  sought  to  be  recovered  back, 
as  having  been  paid  without  consideration,  appeared  to  have  been 
paid  for  something  available,  that  is,  for  three  months'  enjoyment  of 
the  premises  let  to  him  and  his  partner;  and  the  plaintiff  could  not 
put  the  lessor  again  into  the  same  situation.  And  though  several 
general  expressions  are  dropped  by  the  chief  justice  in  delivering 
his  judgment,  yet  when  he  comes  to  apply  them  to  the  subject  before 
the  court,  he  gives  them  a  less  extensive  latitude.  After  referring 
to  the  opinion  of  Lord  Mansfield,  he  goes  on:  '  What  is  the  point 
here?  That  an  infant  having  paid  money  on  a  valuable  considera- 
tion, and  having  partially  enjoyed  the  consideration,  seeks  to 
receive  it  back.'  The  ground,  therefore,  of  the  judgment  in  Holmes 
▼  .  Blogg,  8  Taunt.  508,  was,  that  the  infant  had  received  something 
of  value  for  the  money  he  had  paid,  and  that  he  could  not  put  the 
defendant  in  the  same  position  as  before."  Then,  after  discussing 
the  facts  in  that  case,  he  adds,  10  Bing.  257:  "  As  it  is  plain,  there- 
fore, that  the  infant  had  a  right  to  rescind  the  contract,  the  only 
point  we  have  to  look  to  with  reference  to  Holmes  v.  Blogg  is, 
whether  he  had  derived  any  intermediate  advantage  from  it.  Now 
the  partnership  was  not  to  be  entered  into  until  January,  1833;  and 
in  the  meanwhile  the  infant  had  derived  no  advantage  whatever  from 
the  contract."  And  he  held  that  the  infant  was  entitled  to  recover. 
Gaselee,  J.,  said:  "  I  consider  the  present  case  as  clearly  dis- 
tinguishable from  Holmes  v.  Blogg."  Bosanquet,  J.,  said:  "We 
are  far  from  impeaching  the  judgment  of  the  court  in  Holmes  v. 
Blogg,  as  applicable  to  the  facts  of  that  case.  There,  the  infant  had 
paid  a  sum  of  money  as  part  of  the  consideration  for  a  lease  of 
premises  in  which  he  carried  on  business  with  a  partner.  The 
premises  were,  in  fact,  occupied  for  twelve  weeks;  but  if  they  had 
been  occupied  for  any  other  period,  there  would  have  been  no  differ- 
ence in  principle,  and  the  plaintiff  could  not  recover  back  sums  from 


444  INFANCY. 

the  outlay  of  which  he  had  derived  an  advantage.  There  is  no  rea- 
son, therefore,  for  finding  fault  with  that  decision.  It  is,  however, 
a  general  rule,  that  upon  an  entire  failure  of  consideration,  a  party 
is  entitled  to  recover  back  money  paid,  and  it  cannot  be  said  that  in 
this  respect  an  infant  is  in  worse  situation  than  others.  Here  the 
infant  has  derived  no  benefit  whatever  from  the  contract,  the  con- 
sideration of  which  has  wholly  failed."  And  Alderson,  J.,  said,  lo 
Bing.  259:  "  In  this,  the  case  is  clearly  distinguishable  from 
Holmes  v.  Blogg.  Here  the  infant  has  had  no  enjoyment  of  any 
advantage  from  the  contract;  in  Holmes  \.  Blogg  he  had  enjoyment, 
for  a  period,  of  premises  demised  to  him;  and  so  far  was  in  the  same 
situation  as  if  he  had  paid  for  expensive  clothes  or  other  articles 
not  necessary,  and  after  wearing  them  had  brought  an  action  for 
the  price.  In  such  an  action  he  could  not  be  allowed  to  re- 
cover, although  the  tradesmen,  if  unpaid,  could  not  have  enforced 
payment." 

It  is  to  be  observed  that  all  the  learned  judges  wl,o  dealt  with 
the  case  distinguished  it  from  Holmes  v.  Blogg,  8  Taunt.  508,  on  the 
ground  that  in  that  case  there  had  been  actual  enjoyment  of  the 
demised  premises.  They  did  not  say  that  the  mere  demise  itself,  in 
the  absence  of  occupation,  would  have  been  enough,  and  it  seems 
to  me  that  the  true  rule  to  be  drawn  from  the  cases  is  to  con- 
sider whether  the  infant  has  derived  any  real  advantage  under  the 
contract. 

In  the  present  case  there  was  no  advantage  to  the  infant.  Cer- 
tainly there  was  no  pecuniary  advantage  to  her.  She  took  no  part 
in  the  management  of  the  company  and  did  not  attend  any  meet- 
ings. No  doubt  there  was  an  allotment  of*  shares,  and  her  name  was 
placed  on  the  register.  It  seems  to  me  that  that  is  not  an  advantage 
within  the  rule  of  Corpe  v.  Overton,  10  Bing.  252.  The  consideration 
has  totally  failed  and  the  plaintiff  is  entitled  to  recover,  /.  <?.,  to 
prove  for  the  amount  in  the  winding-up. 


MANNING  V.  JOHNSON. 

26  Ala.  446.  — 1855. 

TTiESVKS,s  quare  clausum  /regit  by  Pierce  Manning  against  Robert 
Johnson,  to  recover  two  town  lots  in  Livingston,  together  with 
damages  for  their  detention. 

"  The  question  was,  whether  plaintiff  could  recover  without  hav- 
ing shown  a  return,  or  an  offer  to  return,  the  purchase-money  which 
he  had  received  from  the  defendant  for  the  premises  sued  for.     The 


AVOIDANCE    OF   CONTRACTS.  445 

court  charged  the  jury,  that  if  they  beHeved  from  the  evidence  that 
plaintiff,  at  the  time  he  sold  and  conveyed  the  premises  to  the  de- 
fendant, was  an  infant  under  the  age  of  twenty-one  years,  but  that 
the  contract  between  them  was  executed — that  is,  that  the  pur- 
chase-money was  paid  by  the  defendant,  and  the  possession,  with 
the  deed,  delivered  up  by  plaintiff — then,  to  entitle  plaintiff  to  recover 
in  this  action,  he  must  have  repaid,  or  offered  to  repay,  the  purchase- 
money  to  the  defendant;  and  to  this  charge  the  plaintiff  excepted." 
This  charge  of  the  court  is  now  assigned  for  error. 

Chilton,  C.  J.  It  is  now  the  settled  doctrine,  that  the  deed  of 
an  infant  is  not  void,  but  voidable  only.  Reeve's  Dom.  Rel., 
p.  2c^o  et  se<j.;  Zouch  v.  Parsotis,  3  Burr.  1794;  Elliott  x.  Horn,  10 
Ala.  348-54;    JVeaver  v.  jl^ones,  24  Id.  420. 

Ordinarily,  it  is  the  privilege  of  an  infant  to  rescind  his  contract 
at  pleasure;  and  this,  without  regard  to  whether  such  contract  was 
a  fair  one  or  not.  This  general  rule  is  subject  to  certain  exceptions, 
but  these  are  not  involved  in  the  case  before  us,  unless  his  failure 
to  return  the  purchase-money,  which  he  has  received  in  considera 
tion  of  the  sale  and  conveyance  of  his  land,  deprives  him  of  the 
power  of  rescission. 

Upon  this  subject  we  have  carefully  looked  into  the  books,  and 
find  much  conflict  of  authority;  and  without,  in  this  place,  com- 
menting upon  them,  we  state  as  our  conclusion,  that  while  we  fully 
subscribe  to  the  doctrine  that  the  infant  must  use  his  privilege  as  a 
shield  to  defend  himself,  and  not  as  an  offensive  weapon  to  injure 
others,  we  cannot  subscribe  to  the  doctrine  that  he  must  refund  the 
purchase-money  which  he  has  received,  and  which  there  is  no  evi- 
dence he  has  had  in  his  possession  after  he  attained  his  majority,  as 
a  condition  precedent  to  his  rescinding  or  avoiding  his  conveyance  at 
law.  We  agree  that  the  strong  current  of  authority  is  otherwise  in 
a  court  of  equity;  but  we  express  no  opinion  now  as  to  the  rule  that 
court  should  proceed  upon  in  such  cases. 

The  effect  of  the  ruling  of  the  primary  court  is,  to  turn  this  con- 
veyance into  a  qtmsi  mortgage,  and  to  allow  the  infant  the  mere 
right  of  redeeming  his  land  upon  repayment  of  the  sum  advanced 
to  him.  But,  we  apprehend,  if  the  parties  had  expressly  contracted 
for  that  relation,  the  infant  would  not  have  been  held  concluded  by 
the  mortgage.  Mr.  Coote,  in  his  Work  on  Mortgages  (p.  105), 
says:  "  With  respect  to  infants  they  are,  of  course,  incapable  of  exe- 
cuting a  mortgage  of  their  own  property,  or  of  lending  money  on 
mortgage;  nor  has  the  guardian,  or  trustee,  nor  even  the  court  of 
chancery,  any  power  to  change  the  nature  of  the  infant's  estate," 
etc.      I  Pow.  on  Mortg.  58-9. 


4^6  INFANCY. 

When  we  come  to  reason  upon  the  proposition,  however,  it  is  sur- 
rounded with  difificulty;  for,  if  the  infant  can  raise  money  to  the 
whole  value  of  his  estate  by  a  voidable  sale  or  mortgage,  and  can 
only  avoid  the  conveyance  after  refunding,  he  is  furnished  the 
means  of  indulging  habits  of  dissipation  and  prodigality,  which  in 
many  instances  would  doubtless  result  in  squandering  the  whole  of 
the  proceeds;  while  the  purchaser  or  mortgagee  would  risk  noth- 
ing, the  land  or  estate  of  the  infant  so  sold  or  mortgaged  furnishing 
adequate  security.  On  the  other  hand,  to  allow  the  infant  to  retain 
the  consideration,  and  yet  to  repudiate  or  disaffirm  the  conveyance, 
would  tempt  as  well  as  enable  him  to  practice  frauds  upon  others. 
We  think  the  safe  rule  should  furnish  a  check  both  upon  the  infant  and 
the  party  contracting  with  him.  That  rule  we  take  to  be  this:  If  the 
infant,  after  he  arrives  at  age,  is  shown  to  be  possessed  of  the  con- 
sideration paid  him,  whether  it  be  property,  money,  or  choses  in  ac- 
tion, and  either  disposes  of  it  so  he  cannot  restore  it,  or  retains  it  for 
an  unreasonable  length  of  time  after  attaining  his  majority,  this 
amounts  to  an  affirmance  of  the  contract.  So,  likewise,  if  it  be  shown 
that  he  has  the  power  to  restore  the  thing  that  he  received,  he  cannot 
be  allowed  to  rescind,  without  first  making  restitution.  But  if,  as  in 
the  case  before  us,  the  consideration  paid  was  money,  and  there  is  no 
proof  that  he  was  possessed  of  the  money  so  obtained,  either  actually 
or  constructively,  after  he  attained  his  majority,  so  as  to  be  able  to 
restore  it  to  the  purchaser,  the  infant  shall  not  be  required,  in  a 
court  of  law,  to  re-pay  the  amount  he  received,  as  a  prerequisite  to 
an  avoidance  of  his  deed  by  suit  for  the  land.  When  he  succeeds  in 
recovering  the  land,  it  works  the  destruction  of  the  contract;  and 
according  to  the  more  modern  authorities,  which  we  are  disposed  to 
consider  as  correct,  the  purchaser  who  has  lost  the  land  may  sue  for 
and  recover  the  money;  and  especially  would  this  action  lie  in  a  case 
like  this,  where  the  purchaser  was  induced  to  enter  into  the  contract 
upon  the  false  representations  made  by  the  infant,  that  he  was  of 
full  age,  and  consequently  competent  to  contract.  We  would  not 
be  understood  as  intimating,  that  if  the  infant  sought  a  rescission 
in  a  court  of  equity,  he  would  not  be  required  to  refund  the  purchase- 
money,  whether  he  had  disposed  of  it  or  not  before  he  arrived  at 
lawful  age.  See,  upon  this  subject,  Dart  on  Vendors  and  Pur- 
chasers of  Real  Estate,  p.  3;  Chambers  on  Infancy,  p.  412;  1  Fonb. 
Eq.  b.  I,  ch.  3,  sec.  4,  and  authorities  on  the  briefs  of  counsel. 

Let  the  judgment  be  reversed  and  the  cause  remanded.* 

'  "  A  distinction  is  taken  in  the  books  between  executory  and  executed  con- 
tracts made  by  infants.  In  the  former  class  of  cases,  if  the  infant  on  becoming 
of  age  disaffirms  the  contract,  then  the  aduU  purchaser  or  contractor  will  be 


AVOIDANCE   OF   CONTRACTS.  447 

Wells,  J.,  in  CHANDLER  v.  SIMMONS. 

97  Mass.  508^  514. — 1867. 

Another  ground  relied  on  by  the  defendant  is  that  the  deed  cannot 
be  avoided  without  a  return  of  the  consideration.  We  do  not  under- 
stand that  such  a  condition  is  ever  attached  to  the  right  of  a  minor 
to  avoid  his  deed.  If  it  were  so,  the  privilege  would  fail  to  protect 
him  when  most  needed.  It  is  to  guard  him  against  the  improvidence 
which  is  incident  to  his  immaturity,  that  his  right  is  maintained. 
Gibson  v.  Soper,  6  Gray,  279-282;  Boody  v.  McKentiey,  23  Me.  517. 
If  the  minor,  when  avoiding  his  contract,  have  in  his  hands  any  of 
its  fruits  specifically,  the  act  of  avoiding  the  contract  by  which  he 
acquired  such  property  will  divest  him  of  all  right  to  retain  the 
same;  and  the  other  party  may  reclaim  it.  He  cannot  avoid  in  part 
only,  but  must  make  the  contract  wholly  void  if  at  all;  so  that  it 
will  no  longer  protect  him  in  the  retention  of  the  consideration. 
Badgers.  Phinney,  15  Mass.  359;  Bigelow  y.  Kinney,  3  Verm.  353. 
Or,  if  he  retain  and  use  or  dispose  of  such  property  after  becoming 
of  age,  it  may  be  held  as  an  affirmance  of  the  contract  by  which  he 


forced  to  become  the  actor,  to  have  the  contract  performed.  In  such  case  the  in- 
fant, or  quondam  infant,  is  under  no  conditions  or  limitations  in  asserting  the 
validity  of  the  contract.  Being  voidable,  and  he  making  timely  election  to  avoid 
by  pleading  his  minority,  his  defence,  if  sustained  by  proof,  will  prevail.  He 
need  not  tender  back  anything  he  may  have  acquired  or  received  under  the  con- 
tract. The  most  that  can  be  required  of  him  is,  that  if  he  retained  and  held  all 
or  any  part  of  what  he  had  received  under  the  contract  until  he  reached  the 
age  of  twenty-one,  then,  on  demand  or  suit,  he  can  be  held  to  account  for  it.  The 
rule  is  different  when  the  contract  has  been  executed.  Then  the  quondam  in- 
fant, or  anyone  asserting  claim  in  his  right,  must  become  the  actor;  and  coming 
into  court  in  quest  of  equity,  he  must  do,  or  offer  to  do  equity,  as  a  condition  on 
which  relief  will  be  decreed  to  him.  This  is  the  difference  between  asking  and 
resisting  relief.  Roof  v.  Stafford,  7  Cow.  179;  Hillyer  v.  Bennett,  3  Edw.  Ch.  222; 
Bartholomew  v.  Finnemore,  17  Barb.  428;  Smith  v.  Evans,  5  Humph.  70;  Mustard 
▼.  Wohlford,  15  Grat.  329;  Bedinger  v.  Wharton,  27  Grat.  857.  But  it  is  only  in 
equity  this  principle  obtains.  If  the  suit  be  at  law,  the  tender  need  not  ordinar- 
ily be  made,  as  a  condition  of  recovering  the  property.  But  if  the  suit  be  in 
equity,  and  if  the  money  or  other  valuable  thing  be  still  in  esse,  and  in  possession 
of  the  party  seeking  the  relief,  or  in  him  from  whom  the  right  to  sue  is  derived, 
the  bill,  to  be  sufficient,  must  tender  or  offer  to  produce  or  pay  as  the  case  may  be. 
Not  so,  if  the  infant  has  used  or  consumed  it  during  his  minority.  Badger  v. 
Phimiey^  15  Mass.  359;  Price  v.  Furnian,  27  Verm.  268;  Chandler  v.  Simmons,  97 
Mass.  508;  Walsh  v.  Young,  no  Mass.  396;  Green  v.  Green,  69  N.  Y.  553;  Dill  v. 
Boiven,  54  Ind.  204;  Phillips  v.  Green,  5  T.  B.  Monroe,  344;  Goodman  v.  Winter, 
64  Ala.  410;  Roberts  v.  Wir'tnn,  i  N.  H.  73."  —  Stone,  J,,  in  Eureka  Company  v. 
E<hvards,  71  Ala.  248,  256  (1881).  That  an  infant  as  defendant  in  equity  must 
do  equity,  McGrael  v.   Taylor,  167  U.  S.  688. 


448  INFANCY. 

acquired  it,  and  thus  deprive  him  of  the  right  to  avoid.  Boyden  v. 
Boydcn,  9  Met.  519;  Rohbins  v.  Eaton,  10  N.  H.  561.  But  if  the 
consideration  has  passed  from  his  hands,  either  wasted  or  expended 
during  his  minority,  he  is  not  thereby  to  be  deprived  of  his  right  or 
capacity  to  avoid  his  deed,  any  more  than  he  is  to  avoid  his  execu- 
tory contracts.  And  the  adult  who  deals  with  him  must  seek  the 
return  of  the  consideration  paid  or  delivered  to  the  minor  in  the 
same  modes  and  with  the  same  chances  of  loss  in  the  one  case  as  in 
the  other.  Dana  v.  Stearns,  3  Cush.  372-376.  It  is  not  necessary, 
in  order  to  give  effect  to  the  disafifirmance  of  the  deed  or  contract  of 
a  minor,  that  the  other  party  should  be  placed  in  statu  quo.  Tucker 
V.  Moreland,    10  Pet.  65-74;   Shaw  v.  Boyd,  5  S.  &  R.  309.* 


Devens,  J.,  IN  PELLETIER  v.  COUTURE. 

148  Mass.  269,  271. — 1889. 

In  the  case  at  bar,  no  warrant  was  issued  against  the  separate 
estate  of  the  petitioner,  but  it  is  his  contention  that,  by  reason  of 
his  minority,  no  warrant  could  properly  have  issued  against  the  part- 
nership property,  as  it  was  his  although  in  connection  with  Couture, 
and  that,  even  if  the  firm  could  be  declared  insolvent,  his  interest  in 
the  partnership  property  could  not  be  taken  to  pay  the  debts  of  the 
firm.  The  plaintiff  had,  however,  no  property  in  any  specific  assets 
affected  by  the  warrant  against  the  firm,  even  if  his  money  had 
passed  into  them  and  they  had  been  purchased  to  some  extent  by  it 
and  by  the  credit  thereby  obtained.  The  partnership  property  (irre- 
spective of  his  minority)  could  not  have  been  attached  as  his.  San- 
born v.  Royce,  132  Mass.  594.  Nor  could  it  have  been  devoted  to 
the  payment  of  his  private  debts,  except  subject  to  the  claims 
against  the  partnership.  He  had  an  interest  in  it  to  receive  there- 
from only  what  might  remain  after  these  were  satisfied.  Peck  v. 
Fisher,  7  Cush.  386.  Nor,  if  the  plaintiff  repudiated  the  debts 
which  had  been  incurred  and  the  purchase  of  this  partnership  prop- 
erty, as  he  did  before  the  judge  of  probate,  by  alleging  his  minority 
and  denying  his  liability  therefor,  could  he  properly  assert  any  title 
to  the  partnership  assets,  or  interest  therein.  This  he  does  by 
urging  that  on  account  of  that  title  or  interest  no  warrant  could  issue 
against  them. 

A  minor  cannot  discharge  himself  from  the  de  )t,  and  yet  hold  the 
property  which   has   been   obtained   by   incurring   the   debt.      If  he 

•  See  note  to  Craig  v.  Van  Bebber,  18  Am.  St.  Rep.  at  pp.  687  and  690. 


AVOIDANCE   OF   CONTRACTS.  449 

avoids  his  contract,  and  refuses  to  pay  the  price  of  goods  which 
have  been  sold  to  him,  the  sale  is  annulled,  and  the  property  re- 
vests in  the  vendor.  Chandler  v.  Simmons^  97  Mass.  508,  514.  If 
he  enters  into  business  with  another  as  a  partner,  and  contracts  are 
made  and  assets  thus  obtained,  he  may  deny  his  liability  on  the  con- 
tracts by  which  they  have  been  obtained,  and  release  himself  from 
the  debts  thus  incurred.  He  will  thus  throw  the  liability  for  the 
whole  debts  on  his  partner,  and  make  such  partner  solely  respon- 
sible, but  the  assets  thus  obtained  should  be  devoted  to  the  satisfac- 
tion of  the  contracts  by  which  they  have  been  procured.  Having 
placed  the  whole  responsibility  on  another,  having  extricated  him- 
self from  all  liability,  to  allow  him  to  retain  the  property,  or  to 
assert  and  maintain  a  title  to  it,  or  any  portion  of  it,  until  the  debts 
are  satisfied,  would  be  manifestly  unjust. 


9.  Effect  of  Avoidance  when  Action  is  Brought,  by  the  Adult,  Based  upon 
THE  Infant's  Avoidance. 

STRAIN  V.  WRIGHT. 

7  Ga.  568.— 1849. 

Warner,  J,  Two  grounds  of  error  are  alleged  to  the  judgment 
of  the  court  below,  in  this  case.  First,  in  refusing  to  give  to  the 
jury  the  instructions  asked  by  the  counsel  for  the  complainant. 
Second,  in  giving  to  the  jury  the  instructions  as  set  forth  in  the 
record  before  us. 

It  appears  that  the  defendant  had  purchased  from  the  complain- 
ant's intestate  a  negro,  for  which  he  paid  a  part  of  the  purchase- 
money,  and  executed  his  note  for  the  balance.  At  the  time  this 
contract  was  executed,  the  defendant  was  an  infant,  who  took  the 
negro  into  his  possession.  When  sued  upon  the  note  given  for  the 
balance  of  the  purchase-money  for  the  negro,  after  attaining  full 
age,  he  filed  the  plea  of  infancy  to  the  action  upon  the  note,  and  at 
the  trial,  sustained  his  plea  by  proof,  whereupon  the  plaintiff  in  that 
action  dismissed  it. 

The  complainant  then  filed  his  bill,  setting  forth  the  facts  of  the 
case,  and  prayed  for  a  decree  to  have  the  negro  sold,  and  out  of  the 
proceeds  of  such  sale  to  pay  the  defendant  the  amount  paid  bv  him 
to  the  complainant's  intestate,  and  the  balance  thereof  to  be  paid  to 
the  complainant. 

The  instructions  asked  by  the  complainant's  counsel  assert  the 
proposition  that  the  contract  for  the  sale  of  the  negro  was  dis« 
[Domestic  Relations  — ag.] 


450  INFANCY. 

affirmed  by  the  defendant,  by  his  plea  of  infancy  to  the  action  on 
the  note,  and  that  the  title  to  the  negro  revested  in  the  original 
vendor,  or  his  legal  representative,  and  that  it  was  competent  for  a 
court  of  equity  to  decree  a  sale  of  the  negro,  so  as  to  adjust  the 
equitable  interests  of  the  respective  parties  to  the  contract,  accord- 
ing to  the  facts  of  this  particular  case.  The  instructions  requested 
were,  in  our  judgment,  correct  in  point  o{  law,  and  ought  to  have 
been  given. 

(i)  The  contracts  of  infants  are  not  void,  but  voidable  at  their 
election,  when  they  arrive  at  twenty-one  years  of  age.  2  Kent's 
Com.  235;  J^oc?/  v.  Stafford.,  7  Cowcn's  Rep.  179.  By  his  plea  of 
infancy  to  the  action  brought  upon  the  note  given  in  part  payment 
for  the  negro,  the  defendant  disaffirmed  the  contract  for  the  sale 
of  him. 

(2)  An  obligation  or  other  deed  of  an  infant  shall  be  avoided  by 
plea  of  within  age.  3  Comyn's  Dig.  550,  letter  c,  5.  The  plea  of 
infancy  was  his  own  voluntary  act,  and  manifested  his  intention  to 
repudiate  the  contract,  and  he  is  therefore  bound  by  it.  The  de- 
fendant will  not  be  permitted  to  disaffirm  the  contract,  when  sued 
for  the  purchase-money  by  the  vendor,  and  when  the  latter  seeks  to 
recover  the  property,  in  consequence  of  such  disaffirmance,  to  refuse 
to  give  it  up,  and  then  insist  upon  such  refusal  as  evidence  of  an 
affirmance  of  the  contract,  as  was  contended  by  the  counsel  for  the 
defendant  in  error.  When  the  defendant  filed  his  plea  of  infancy  to 
the  contract,  he  made  his  election  to  disaffirm  it,  and  he  is  bound 
by  such  election. 

It  has  been  insisted  on  the  argument,  that  when  an  infant  has 
received  property  by  virtue  of  an  executed  contract  made  with  an 
adult,  that  when  he  arrives  of  age  and  disaffirms  the  contract,  by 
his  plea  of  infancy  to  the  note  given  for  the  property  so  received, 
the  adult  cannot  recover  from  the  infant,  either  the  purchase- 
money  for  the  property  sold  to  him,  or  the  property.  Upon  what 
legal  principle  this  doctrine  can  be  supported  we  are  unable  to  de- 
termine; certainly  upon  no  just  principle. 

(3)  The  infant,  in  this  case,  derived  his  title  to  the  negro  by  vir- 
tue of  the  contract  made  with  the  complainant's  intestate.  When 
of  age  he  disaffirms  the  contract,  and  it  is  canceled  for  his  benefit. 
The  rontract  of  sale  being  rescinded  at  the  instance  of  the  infant, 
what  becomes  of  his  title  to  the  property  derived  from  the  vendor? 
According  to  legal  rules  and  common  sense,  it  would,  seem  that  the 
title  to  the  property  would  revest  in  the  vendor;  and  yet  the  author- 
ities to  be  found  in  the  books  upon  this  question  are  not  as  harmo- 
nious as  might  be  expected.     We,  however,  adopt  the  rule  as  stated 


AVOIDANCE    OF    CONTRACTS.  451 

by  Chancellor  Kent.  If  the  infant  avoids  an  executed  contract 
when  he  comes  of  age,  on  the  ground  of  infancy,  he  must  restore 
the  consideration  which  he  has  received.  The  privilege  of  infancy 
is  to  be  used  as  a  shield,  and  not  as  a  sword.  He  cannot  have  the 
benefit  of  the  contract  on  one  side  without  returning  the  equivalent 
on  the  other.  2  Kent's  Com.  240.  The  cases  of  Badger  v.  Fhimiey, 
15  Mass.  Rep.  359;  Roberts  v.  Wiggins,  1  N.  H.  Rep.  73,  and  Roof 
v.  Stafford,  7  Cowen's  Rep.  179,  are  cited  in  support  of  this  doc- 
trine. In  Badger  v.  Fhinney,  the  court  inquire,  after  the  contract 
has  been  rescinded,  what  is  to  be  done  then?  "  Should  not  the 
plaintiff  and  defendant  be  placed  in  the  same  situation  as  if  no  such 
contract  had  been  made?  But  that  will  not  do  for  the  defendant. 
His  notion  of  rescinding  is  to  keep  all  and  to  pay  nothing  on  the 
contract."  So  here,  the  defendant  wishes  to  keep  the  negro,  and 
not  pay  the  note  given  for  the  purchase-money.  The  rule  adopted 
in  Badger  v.  Fhinney  is  recognized  by  the  Supreme  Court  of  Ala- 
bama, in  yefford' s  Adtn  r  v.  Ringold  6^  Co.,  6  Ala.  Rep.  548.  See, 
also,  9  Metcalf's  Rep.  519.  We  cannot  sanction  the  doctrine  con- 
tended for,  that  an  infant  who  obtains  property  by  virtue  of  a  con- 
tract with  an  adult,  may,  when  of  age,  disaffirm  such  contract  under 
the  law  made  for  his  protection,  and  then  refuse  to  restore  the  prop- 
erty thus  obtained.  The  law,  which  was  intended,  in  the  language 
of  the  authorities,  as  a  shield  for  the  protection  of  the  infant,  would 
be  an  instrument  in  his  hands  for  offensive  operations.  It  would 
enable  him  to  act  aggressively  upon  the  rights  of  others,  instead  of 
enabling  him  to  guard  and  protect  his  own  rights.  There  is  no 
doubt,  in  the  view  we  have  taken  of  this  case,  that  if  no  part  of  the 
purchase-money  for  the  negro  had  been  paid  to  the  vendor,  and 
the  note  had  been  given  for  the  entire  amount  thereof,  that  upon  the 
disaffirmance  of  the  contract  by  the  defendant,  an  action  of  trover 
might  have  been  maintained  at  law  by  the  vendor,  for  the  recovery 
of  the  property;  but  part  of  the  purchase  money  having  been 
paid  to  the  vendor  by  the  defendant  for  the  property,  the  remedy 
of  the  vendor,  at  law,  was  inadequate  and  difficult.  The  peculiar 
facts  of  the  case  raised  such  an  equity  in  favor  of  the  com- 
plainant as  gave  to  the  court  of  equity  jurisdiction  for  the  pur- 
pose of  settling  the  rights  of  the  respective  parties.  The  charge  of 
the  court  to  the  jury  was  a  denial  of  the  complainant's  right  to  the 
relief  which  he  prayed  —  to  have  the  negro  sold,  and  out  of  the  pro- 
ceeds thereof  to  pay  the  defendant  the  amount  paid  by  him,  and 
the  balance  to  be  paid  to  the  vendor.  The  contract  having  been 
disaffirmed  by  the  defendant,  such  a  decree,  in  our  judgment,  would 
have  properly  adjusted  the  rights  of  the  respective  parties,   accord- 


.\$2  INFANCY. 

ing  to  the  facts  as  made  by  the  record  before  us,  and  ought  to  have 
been  so  adjudged. 

Let  the  judgment  of  the  court  below  be  reversed,  on  the  ground 
that  the  court  erred  in  not  giving  the  instructions  as  requested  by 
the  complainant's  counsel,  and  in  giving  the  instructions  as  set 
forth  in  the  record. 


Ratification  of  Contracts. 

I.  What  Constitutes  Ratification. 

THOMPSON  V.  LAY. 

4  Pick.  (Mass.)  48. — 1826. 

Assumpsit  on  the  promise  of  the  wife  before  marriage.  The  de- 
fendants pleaded  the  infancy  of  the  wife.  The  plaintiffs  replied  a 
ratification  after  she  came  of  age  and  before  her  marriage. 

The  plaintiff,  to  prove  a  ratification,  produced  evidence  that  the 
wife,  after  she  was  of  age  and  before  her  marriage,  acknowledged 
she  owed  the  money  on  the  note,  and  said  that  she  had  not  the 
means  of  paying  it  then,  but  that  she  would  pay  it  as  soon  as  she  had 
the  means,  or  as  soon  as  she  should  be  able. 

On  this  evidence  the  defendants  agreed  to  be  defaulted;  but  if  it 
was  insufiicient  to  maintain  the  action,  the  default  was  to  be  taken 
off,  and  the  plaintiffs  were  to  become  nonsuit. 

Parker,  C.  J.,  delivered  the  opinion  of  the  court.  The  authori- 
ties cited,  especially  the  cases  of  Whitney  v.  Dutch  [14  Mass.  460], 
and  Ford  ^.Phillips  [i  Pick.  203],  explicitly  lay  down  the  principle 
that  the  promise  of  an  infant  cannot  be  revived  so  as  to  sustain  an 
action,  unless  there  be  an  express  confirmation  or  ratification  after 
he  becomes  of  age. 

Such  a  ratification  may  be  proved  in  divers  ways;  but  it  cannot  be 
inferred  from  a  mere  acknowledgment  of  debt,  as  in  the  cases  on 
the  statute  of  limitations.  A  promise  to  pay  is  evidence  of  a  ratifi- 
cation; so  is  a  direct  confirmation,  though  not  in  words  amounting 
to  a  direct  promise;  as,  if  the  party  should  say,  after  coming  of  age, 
I  do  ratify  and  confirm,  or  do  agree  to  pay,  the  debt. 

But  a  ratification  may  be  absolute  or  conditional.  If  it  be  the  lat- 
ter, the  terms  of  the  condition  must  have  happened,  or  been  complied 
with,  before  an  action  can  be  sustained.  I  ratify  and  confirm  my 
promise,  provided  I  receive  a  certain  legacy,  or,  if  I  succeed  to  a 
certain  estate,  or,  if  I  recover  a  certain  sum  of  money,  or,  if  I  draw  a 


RATIFICATION   OF   CONTRACTS.  453 

prize  in  a  certain  lottery,  would  make  a  conditional  promise  or  rati- 
fication, sufficient  to  make  the  defendant  liable  on  a  contract  made 
when  a  minor,  when  the  events  happen,  but  not  before.  So  an 
engagement  or  promise  to  pay  when  able  is  a  conditional  promise, 
and  the  plaintiff,  to  avail  himself  of  it,  must  give  in  evidence  the 
ability  of  the  defendant.  It  would  not  be  necessary  to  show  any 
ability  to  pay  without  inconvenience,  but  evidence  that  there  is 
property  from  which  the  debt  might  be  paid,  or  an  income  from 
some  source  which  would  enable  the  party  to  pay,  would  be  sufficient. 

The  cases  cited  by  the  plaintiff's  counsel  are  bottomed  upon  this 
principle.  That  of  Martin  v.  Mayo  [lo  Mass.  (Rand's  ed.)  141]  is 
thought  to  be  of  a  different  description,  but  we  understand  the  court 
to  have  there  explicitly  admitted  the  principle,  but  to  have  decided 
that  the  words  appended  to  the  promise  did  not  constitute  a  condi- 
tion, but  merely  postponed  the.  time  of  payment.  If  there  was  any 
error,  which,  however,  we  do  not  perceive,  it  was  not  in  the  principle 
adopted,  but  in  the  construction  of  the  words  of  the  promise. 

Plaintiffs  nonsuit.* 


TOBEY  V.  WOOD. 

123  Mass.  88. — 1877. 


Morton,  J.  This  is  an  action  of  contract  upon  two  checks,  dated 
respectively,  December  2,  1872,  and  January  3,  1873,  signed  by  Seth 
Wood  &  Co.,  and  duly  presented  for  payment,  and  protested  for 
non-payment. 

The  defendant  Humes,  the  only  one  of  the  signers  who  defends 
the  action,  was  a  member  of  the  firm  of  Seth  Wood  &  Co.,  and, 
when  the  checks  were  drawn,  was  an  infant.  His  promise  to  pay 
the  checks,  therefore,  was  a  voidable  contract,  and  the  burden  of 
proof  is  upon  the  plaintiff  to  show  that  Humes,  after  he  became  of 
age,  affirmed  and  ratified  the  contract.  2  Greenl.  Ev.  sec.  367,  and 
cases  cited.  Reedw  Batchelder,  i  Met.  559.  Such  ratification  may 
be  shown,  either  by  proof  of  an  express  promise  to  pay  the  debt, 
made  by  the  infant  after  he  became  of  age,  (which  is  not  claimed  in 
this  case),  or  by  proof  of  such  acts  of  the  infant,  after  he  became  of 
age,  as  fairly  and  justly  lead  to  the  inference  that  he  intended  to 
ratify  the  contract  and  pay  the  debt.  Boody  v.  McKeuftey,  23  Me. 
517;  Proctor  V.  Sears,  4  Allen,  95;  Thompson  v.  Lay,  4  Pick.  48; 
Pierce  v.  Tobey,  5  Met.  168;  Dublin  &=  Wicklow  Railway  v.  Blacky 
8  Exch.  181;  s.  c.  16  Eng.  L.  &  Eq.  558,  and  note. 

'"A  ratification  of  an  infant's  contract  should  be  something  more  than  a 
mere  admission  to  a  stranger  that  such  a  contract  existed;  there  should  be  a 
promise  to  a  party  in  interest  or  his  agent,  or  at  least  an  explicit  admission  of 
an  existing  liability  from  which  a  promise  may  be  implied."  Goodsell  v.  Myers, 
3  Wend.  479. 


454  i.\i-A\(  V. 

The  plaintiff  contends  that  the  facts  in  this  case  justify  the  finding 
that  the  defendant  Humes  intended  to  and  did  ratify  his  promise  to 
j')ay  these  checks.  These  facts  are,  that  a  portion  of  the  goods 
which  formed  the  consideration  of  the  checks  remained  unsolJ  up  to 
the  time  of  the  dissolution  of  the  firm,  which  was  seven  weeks  after 
Humes  became  of  age;  that  during  said  seven  weeks  he  drew  money 
for  his  personal  use,  from  time  to  time,  from  the  firm;  and  that,  at 
tlie  dissolution,  his  partners,  the  other  defendants,  agreed  with  him 
tliat  they  would  assume  and  jiay  all  the  debts  of  the  firm.  It  is  also 
agreed  that,  at  the  time  Humes  became  of  age,  and  until  after  the 
dissolution,  he  supposed  that  these  checks  were  paid. 

It  has  often  been  held  that,  if  an  infant  purchases  property,  and, 
after  he  becomes  of  age,  retains  specifically  the  property,  and  uses 
or  disposes  of  it,  it  may  be  an  affirmance  of  the  contract  by  which 
he  acquired  it,  and  deprive  him  of  the  right  to  avoid.  Chandler  v. 
Simmofis,  97  Mass.  508,  and  cases  cited.  This  is  upon  the  ground 
that  he  can  honestly  retain  the  goods  only  upon  the  assumption  that 
the  contract  by  which  he  acquired  them  was  valid,  and  therefore  his 
retention  and  use  of  them,  if  unexplained,  justly  leads  to  the  infer 
ence  of  a  promise  or  undertaking  to  pay  for  them,  after  his  incapac- 
ity to  make  contracts  is  removed.      Todd  \.  Clapp,  ii8  Mass.  495. 

But  this  rule  cannot  apply  in  the  present  case,  because  it  is  not 
shown  that  Humes  knew  that  any  of  the  goods,  which  were  the  con- 
sideration of  the  checks,  remained  undisposed  of  at  the  time  he  be- 
came of  age,  and  it  is  shown  that  he  supposed  that  the  checks  had 
been  paid.  Under  these  circumstances,  there  is  no  foundation  for 
an  inference  of  a  promise  by  him  to  pay  the  checks.  Smith  v. 
Xellcy,  13  Met.  309. 

The  facts  that  Humes  remained  in  the  firm  for  several  weeks  after 
he  became  of  age,  drawing  money  from  time  to  time,  for  his  personal 
use,  and  that  when  he  retired  he  took  an  agreement  from  his  part- 
ners that  they  would  pay  all  the  debts  of  the  firm,  are  relied  upon  by 
the  plaintiff  as  showing  an  affirmance  of  the  checks.  But  we  are  of 
opinion  that  these  facts  do  not  afford  sufficient  proof  of  such  affirm- 
ance. In  this  connection,  it  must  be  borne  in  mind  that  Humes 
supposed  these  checks  to  have  been  paid.  In  the  absence  of  an  ex- 
press promise  to  pay,  an  affirmance  can  only  be  shown  by  unequivo- 
cal acts  of  the  defendant,  after  he  became  capable  of  contracting, 
which  show  his  intention  to  pay  the  debt.  How  far  these  acts  of 
Humes  might  tend  to  show  an  intention  on  his  part  to  ratify  such 
debts  of  the  firm  as  were  within  his  knowledge,  need  not  be  con- 
sidered. It  would  be  forced  and  unreasonable  to  infer  from  them 
an   intention   and   promise   to   pay  a  debt  which  he  supposed    had 


RATIFICATION   OF   CONTRACTS.  455 

already  been  paid.  Crabtree  v.  Ma}\  i  B.  Mon.  289;  Minock  v. 
Shortridge,  21  Mich.  304;  Dana  v.  Stearns,  3  Cush.  372. 

It  is  argued  that  the  taking  an  agreement  of  indemnity  from  his 
partners  implies  that  he  was  Hable  for  the  debts  of  the  firm,  and  is 
therefore  evidence  of  a  promise  to  ratify  and  pay  such  debts.  This 
is  not  necessarily  so.  The  contract  of  indemnity  may  have  been 
necessary  for  his  protection  against  debts  of  the  firm  contracted 
after  he  became  of  age.  But  if  this  act  is  to  be  regarded  as  evidence 
that  he  supposed  himself  liable  for  all  the  debts  of  the  firm,  it  is  not 
of  itself  sufficient  proof  of  a  ratificatio'i.  The  act  relied  on  as  a  rati- 
fication of  a  promise  made  during  infancy  must  amount  to,  or  be 
sufficient  evidence  of,  a  promise  or  undertaking  to  pay  the  debt. 
Smith  V.  K el  ley,  13  Met.  309. 

Perhaps  if  an  infant  member  of  a  firm  should,  after  he  became  of 
age,  buy  out  his  partners,  take  the  property  of  the  firm,  and  agree 
to  pay  all  the  debts  of  the  firm,  this  might  amount  to  a  ratification 
of  his  promise  to  pay  all  the  firm  debts,  whether  known  or  unknown 
to  him.  It  would  be  a  clear  expression  of  his  intention  and  under- 
taking, after  be  became  competent  to  bind  himself,  to  affirm  and  pay 
such  debts.  But  taking  from  his  partners  a  promise  that  they  will 
pay  the  debts  does  not  imply  an  intention  on  his  part  to  pay  them. 
It  implies  that  he  desires  and  expects  that  they  will  pay  the  debts, 
and  is  as  consistent  with  an  intention  on  his  part  to  avail  himself  of 
the  defence  of  infancy,  as  of  the  intention  to  waive  that  privilege. 
Upon  the  whole  case,  we  are  of  opinion  that  the  facts  do  not  justify 
a  finding  that  the  defendant  Humes,  after  he  became  of  age,  ratified 
or  promised  to  pay  the  checks  in  suit. 

Judgment  for  the  defendant  Humes. 


Lawrence,  J.,  in  McCARTY  v.  CARTER. 

49  III.  53,  54.— 1868. 

This  was  a  petition  to  establish  a  mechanic's  lien,  brought  by 
Carter,  the  appellee,  against  Samuel  McCarty,  Emily  A.  McCarty, 
his  wife,  and  Lucy  J.  Davis,  the  daughter  by  a  former  husband  of 
said  Emily  A.  McCarty.  The  lot  upon  which  the  building  had  been 
erected  belonged  to  the  daughter,  subject  to  a  right  of  dower  in  her 
mother.  The  appellee  had  made  his  contract  in  writing  with  Samuel 
McCarty.  On  the  hearing,  the  court  gave  for  the  complainant  the 
following  instruction: 

If  the  jury  shall  believe,  from  the  evidence,  that  the  contract  in 
question  was  made  by  McCarty  on  behalf  of  himself  and  Mrs.  Mc- 


456  INFANCY. 

Carty  and  Lucy  J.  Davis,  and  that  he  was  authorized  by  them  to 
make  the  same,  (and  that  after  the  said  Lucy  J.  became  of  age  she 
received  the  rents  and  profits  of  the  building  erected  under  the  con- 
tract, or  any  part  thereof),  then  such  contract  is  binding,  although 
their  names  do  not  appear  in  it,  and  it  does  not,  on  its  face,  purport 
to  be  their  act." 

The  principle  embodied  in  this  instruction  was  repeated  in  several 
others,  and  we  will  first  consider  it  in  regard  to  the  infant  appellant. 
The  lien  in  this  class  of  cases  arises  from  work  done  or  materials 
furnished  under  an  obligatory  contract,  and  if  the  contract  ceases 
to  be  binding  the  lien  necessarily  fails.  An  infant  is  not  bound  by 
his  contract,  except  in  certain  cases,  to  which  the  erection  of  a 
building  for  rent  does  not  belong.  A  conveyance  or  mortgage  by 
him  of  his  real  estate  would  not  be  binding  upon  him,  and  the  legis- 
lature certainly  never  intended  to  allow  him  to  encumber  his  prop- 
erty, indirectly,  by  a  contract  for  its  improvement,  when  he  cannot 
do  the  same  thing  in  a  binding  mode  by  an  instrument  executed  ex- 
pressly for  the  purpose.  A  minor  who  has  nearly  attained  his  ma- 
jority may  be  as  able,  in  fact,  to  protect  his  interests  in  a  contract 
as  a  person  who  has  passed  that  period.  But  the  law  must  neces- 
sarily fix  some  precise  age  at  which  persons  shall  be  held  sui  juris. 
It  cannot  measure  the  individual  capacity  in  each  case  as  it  arises. 
It  must  hold  the  youth  who  has  nearly  reached  his  majority  to  be  no 
more  bound  by  his  contract  than  a  child  of  tender  years,  and  neither 
in  one  case  nor  in  the  other  can  it  permit  a  contractor  to  claim  a 
lien  against  his  property  under  the  guise  of  a  contract  for  improve- 
ment. This  would  expose  minors  to  ruin  at  the  hands  of  designing 
men.  The  mechanic  who  erects  a  building  must  take,  like  all  other 
persons,  the  responsibility  of  ascertaining  that  he  is  contracting 
with  a  person  who  has  reached  the  requisite  age.  We,  therefore, 
hold  it  immaterial  whether  Lucy  J,  Davis,  being  then  a  minor,  author- 
ized McCarty  to  make  this  contract  or  not. 

Neither  do  we  consider  her  receipt  of  rents,  after  she  became  of 
age,  such  a  ratification  of  the  contract  of  McCarty,  even  though 
made,  as  the  instruction  says,  in  her  behalf,  as  would  operate  to 
create  a  lien  against  her.  Ratification  by  an  adult  of  a  contract 
made  by  him  when  a  minor  is  a  question  of  intention.  It  can  be 
inferred  only  from  his  free  and  voluntary  acts  or  words.  But  it 
would  be  unreasonable  to  compe  a  minor  to  choose  between  the 
utter  abandonment  of  his  property  and  the  creation  of  a  lien  upon 
it  under  a  contract  made  during  his  minority  and  to  say,  if  he  re- 
tains the  property  he  ratifies  the  lien  If  wc  were  to  hold  that  the 
mere  receipt  of  rents  amounted  to  a  ratification,  we  should  be  tak- 


RATIFICATION   OF   CONTRACTS.  457 

ing  from  the  minor  the  protection  which  the  law  designs  to  give 
him,  for  the  builder  might  safely  assume  the  minor  would  continue 
in  the  possession  of  his  own  property,  and  thus,  by  ratification, 
create  a  lien  which  the  statute  had  not  given  when  the  contract  was 
made.  The  builder  might  thus  make  what  contract  he  could  with 
the  minor,  under  the  assurance  that,  though  the  contract  was  not 
binding  and  the  statute  gave  him  no  lien,  one  would  nevertheless  be 
worked  out  for  him  by  a  necessary  ratification. 


HATCH  V.  HATCH'S  ESTATE. 

60  Vt.  160.— 1887. 

Veazey,  J.  Exceptions  were  taken  to  the  judgment  rendered 
upon  the  auditor's  report,  in  which  the  facts  are  concisely  stated. 
The  plaintiff  was  the  mother  of  Lura  E.  Hatch,  deceased,  and 
claims  to  recover  the  items  of  her  account  in  controversy  on  the 
ground  of  a  contract  between  the  mother  and  daughter,  while 
the  latter  was  a  minor  of  sixteen  years  of  age,  and  a  ratification  of  the 
same  after  she  became  of  full  age.  The  first  item,  including  interest 
to  September  i,  1886,  was  $720.20,  for  money  which  the  'plaintiff 
paid  for  school  expensqs  of  Lura  while  attending  academies. 

We  think  the  report  shows  a  distinct  agreement  on  the  part  of 
Lura  to  repay  her  mother  for  these  expenses.  Upon  the  facts 
reported  the  agreement  was  a  natural  one  to  be  made,  and  was  in  its 
nature  beneficial  to  the  minor.  The  mother  clearly  could  not  afford 
to  give  her  daughter  the  higher  education  which  she  desired.  The 
latter  had  the  means  to  be  devoted  to  such  use  by  the  devise  to  her 
by  her  father,  but  not  in  ready  money.  The  finding  of  the  auditor 
is  incapable  of  a  fair  construction  other  than  of  an  agreement  as 
above  stated,  when  taken  in  connection  with  the  circumstances 
existing  when  the  arrangement  was  made. 

The  defendant  relies  mainly  upon  the  claim  that  this  contract  was 
not  ratified  after  Lura  arrived  at  her  majority.  The  finding  of  the 
auditor  is  this:  "  After  Lura  became  of  age,  and  while  still  attend- 
mg  the  seminary  at  Montpelier,  she  reiterated  to  her  mother  her 
desire  to  go  to  school  there  and  her  willingness  to  pay  the  expenses 
incident  thereto  from  her  own  share,  and  referred  approvingly  to 
her  former  promise  to  that  effect  during  her  minority.  She  told  her 
mother  she  wished  this  arrangement  to  continue  as  it  had  been 
before  she  came  of  age."  There  is  no  question  but  that  tlie  con- 
tract, by  which  a  debt  is  incurred  by  an  infant,  may  be  ratified  by  an 
express    promise   to   pay   the   debt,  made   by   the   infant,    when    he 


45^  INFANCY. 

becomes  of  age,  deliberately  and  with  knowledge  that  he  is  not  liable 
by  law.  To  this  extent  the  cases  agree.  Beyond  this  they  are  not 
entirely  harmonious,  at  least  in  the  enunciation  of  what  is  required 
to  constitute  ratification.  As  illustrations,  see  Smith  v.  Mayo,  9 
Mass.  62,  and  IVhitmy  v.  Dutch,  14  Mass.  457. 

There  are  many  cases  which  hold  that  although  an  express  ratifica- 
tion is  necessary,  yet  it  is  not  required  to  be  in  the  form  of  an 
express  new  promise.  Tibbitts  v.  Gerrish,  5  Foster  (N.  H.),  41,  and 
Harris  v.  Wall,  i  Exch.  122,  are  examples.  Acts  and  declarations 
of  one  after  attaining  majority,  in  favor  of  his  contract,  may  be  of  a 
character  to  constitute  as  perfect  evidence  of  a  ratification  as  an 
express  and  unecjuivocal  promise.  Mere  acknowlegment  of  the  con- 
tract, or  partial  payment,  will  not  alone  be  sufficient.  There  must 
either  be  an  express  promise  to  pay,  or  such  a  direct  confirmation  as 
expressly  ratifies  the  contract,  although  it  be  not  in  the  language  of 
a  formal  promise.  Wilcox  v.  Roath,  12  Conn.  551;  Gray  v.  Bal- 
lon, 4  Wend.  403;  Whitney  v.  Dutch,  supra.  The  cases  in  Vermont 
have  not  recognized  the  necessity  of  an  express  promise  in  terms  in 
order  to  constitute  ratification  of  an  obligation  incurred  during 
infancy.  Where  the  declarations  or  acts  of  the  individual  after 
becoming  of  age,  fairly  and  justly  lead  to  the  inference  that  he 
intended  to  and  did  recognize  and  adopt  as  binding  an  agreement 
executory  on  his  part  made  during  infancy,  and  intended  to  pay  the 
debt,  then  incurrred,  we  think  it  is  sufficient  to  constitute  ratifica- 
tion, provided  the  declarations  were  freely  and  understandingly 
made,  or  the  acts  in  like  manner  performed,  and  with  knowledge 
that  he  was  not  legally  liable.  This  proposition  is  clearly  within  the 
scope  of  decisions  in  a  long  line  of  approved  authorities,  cited  in 
Tyler  on  Infancy  and  Coverture  (2d  ed.)  chap.  VI,  and  i  Am.  Lead. 
Cases,  p.  250. 

The  Vermont  cases  plainly  warrant  us  in  holding  that  the  above 
conditions  are  sufficient.  In  Bigelow  v.  Kinney,  3  Vt.  on  p.  353, 
Prentiss,  Ch.  J.,  says:  "Though  it  is  laid  down  that  a  bare 
acknowledgment  or  recognition  of  the  contract  of  an  infant,  after  he 
becomes  of  age,  without  an  express  promise,  will  not,  where  the  con- 
tract is  for  the  payment  of  money,  or  the  performance  of  some  personal 
duty,  and  remains  executory,  amount  to  a  ratification ;  yet  in  general, 
an  express  act  done  under  a  contract  of  his  infancy  implying  a  con- 
firmation of  it,  has  been  held  to  be  sufficient."  See,  also,  Forsyth  v. 
Hastings,  27  Vt.  646.  Regarding  these  conditions  as  not  only  suffi- 
cient but  required,  we  think  they  are  all  covered  by  the  finding  of 
the  auditor.  Taking  that  which  she  said  to  her  mother  after  arriving 
at  full  age,  and   while  still   at  the  seminary,  in  connection  with  the 


RATIFICATION    OF    CONTRACTS.  459 

unmistakable  understanding  between  the  parties  during  the  infancy, 
and  all  the  circumstances  the  conclusion  seems  to  us  irresistible 
that  there  was  a  mutual  understanding  that  Lura  would  not  only 
repay  her  mother  for  the  future  advances,  but  would  pay  the  past 
advances  as  she  had  first  promised.  She  then  called  the  first  arrange- 
ment "  her  former  promise,"  and  told  her  mother  she  wished  it  to 
continue  as  it  had  been  before  she  became  of  age. 

When  the  minds  of  contracting  parties  meet  and  they  both  under- 
stand that  by  what  is  said  it  is  intended  that  it  should  be  taken  as  an 
assumption  of  an  obligation  and  a  promise  to  pay,  it  is  the  equiva- 
lent of  a  promise  in  terms. 

There  is  no  question  but  Lura  spoke  deliberately  and  without 
duress  in  any  form;  and  we  think  it  is  plain  that  she  spoke  under- 
standingly  as  to  her  legal  liability.  It  has  been  held  that  in  the 
absence  of  any  proof  to  the  contrary,  it  is  to  be  presumed,  that  at 
the  time  of  making  the  new  promise,  the  person,  lately  an  infant, 
was  aware  of  his  rights.  Taft  v.  Sergeant,  i8  Barb.  321.  This 
would  seem  to  be  the  natural  presumption.  But  however  this  may 
be,  the  language  of  Lura,  under  the  circumstances  in  which  it  was 
spoken,  imports  such  knowledge.  It  is  difficult  to  see  what  should 
lead  Lura  to  renew  her  promise  as  to  the  payments  in  her  behalf 
during  infancy  except  upon  the  theory  of  knowledge  that  such 
renewal  was  necessary  to  create  legal  liability.  She  was  then  at  the 
seminary,  her  contemplated  education  incomplete,  and  no  change 
from  the  previous  condition  except  that  she  had  attained  her 
majority.  She  then  brings  the  matter  up,  reiterates  her  desire  to  go 
on,  and,  in  effect,  renews  her  former  promise  so  as  to  make  the 
renewal  applicable  as  to  past  as  well  as  for  future  advances.  She 
had  the  education  which  about  two  years  in  the  academy  would 
bring,  after  having  passed  through  the  common  school.  We  come 
to  the  conclusion  of  her  knowledge  of-Jthe  legal  situation  without 
hesitation. 

The  plaintiff  further  claims  to  recover  for  an  organ  which  the 
auditor  finds  she  bought  for  Lura  in  1872,  when  the  latter  was  about 
sixteen  years  old,  at  her  request,  and  which  Lura  claimed  and 
treated  as  her  own  from  its  purchase  till  her  death  in  1877;  and  it 
was  so  regarded  in  the  family.  Lura's  home  was  always  at  her 
mother's,  and  the  organ  was  kept  there,  except  that  Lura  had  it 
with  her  when  away  at  school  for  a  short  time.  The  auditor  says  he 
does  not  find  there  was  any  express  contract  by  Lura  to  pay  any  of 
the  expenses  incurred  by  her  mother  for  her,  except  those  incident 
to  her  schooling. 

We  think  these  findings  are   insufficient   to  warrant  the  holding  of 


460  INFAN'CY. 

the  relation  of  debtor  and  creditor  between  Lura  and  her  mother. 
There  was  no  appointed  guardian,  and  they  held  the  ordinary  rela- 
tion of  parent  and  child.  The  only  ground  for  holding  that  the  pur- 
chase of  the  organ  created  an  indebtedness  is  that  the  mother  bought 
it  at  the  request  of  the  daughter.  While  that  might  be  sufficient  as 
between  strangers,  we  think  it  is  not  sufficient  as  between  parent 
and  child;  esjiecially  in  reference  to  such  an  article  and  under  the 
circumstances  shown  in  the  report.  There  is  not  enough  shown  to 
distinguish  the  case  from  the  ordinary  one,  where  the  parent  indulges 
the  request  of  a  child. 

The  plaintiff  also  claims  to  recover  for  nursing  Lura  in  her  last 
sickness,  and  for  the  physician's  bill.  This  claim  is  clearly  without 
legal  foundation. 

Neither  can  she  recover  for  the  burial  expenses  of  Lura.  These 
belong  to  the  administrator  of  her  estate  to  pay.  This  case  is  an 
appeal  from  the  allowance  of  commissioners  on  claims  against  Lura's 
estate,  and  the  jurisdiction  is  limited  to  claims  accruing  during  the 
lifetime  of  the  deceased.      Sawyer  v.  Hebard^  58  Vt.  375. 

The  judgment  is  reversed,  and  judgment  is  rendered  for  the  plain- 
tiff for  the  item  of  $720.20  and  interest  thereon,  and  costs  in  this 
court;  the  cost  previous  to  be  apportioned.  Let  this  judgment  be 
certified  to  the  Probate  Court.' 


2.  Whether  Ratification  Must  be  made  with  Knowledge  of  Non-liability. 

MORSE  AND  Another  v.  WHEELER. 

4  Allen  (Mass.),  570. —  1862. 

Contract  to  recover  the  balance  due  on  a  purchase  of  cattle 
made  of  the  plaintiffs  by  the  defendant,  who  was  an  infant  at  the 
time  of  the  purchase. 

At  the  trial  in  the  Superior  Court,  there  was  evidence  tending  to 
show  that  the  defendant,  after  becoming  of  age,  promised  to  pay  the 
balance  due  to  the  plaintiffs;  and  Ames,  J.,  instructed  the  jury  that 
if  they  believed  this  evidence  the  plaintiffs  were  entitled  to  recover. 
The  defendant  requested  that  this  instruction  might  be  qualified,  by 
adding  that  the  plaintiffs  were  entitled  to  recover,  "  provided  the 
defendant  knew  at  the  time  of  such  alleged  new  promise  that  he 
was  not  legally  liable  to  pay  the  debt."     The  judge  declined  to  add 

'  In  some  states  the  ratification  is  required  to  be  in  writing.  See  Stimson  Am. 
St.  Law,  §  4147. 


RATIFICATION    OF   CONTRACTS.  461 

this  qualification,  but  stated  that,  as  the  defendant  was  of  full  age  at 
the  time  of  the  alleged  ratification,  he  must  be  presumed  to  know 
his  legal  liabilities  and  privileges,  and  could  not  avail  himself  of  a 
mistake  of  law  on  his  part. 

Metcalf,  J.  This  case  brings  before  the  court,  for  the  first 
time,  the  question  whether  it  is  necessary  to  the  ratification  of  an 
infant's  promise,  after  he  is  of  full  age,  that  he  should  know,  when 
he  makes  the  new  promise,  that  he  is  not  legally  liable  on  the  other. 
It  is  said  in  numerous  books  that  such  knowledge  is  necessary  to 
such  ratification.  But  we  are  all  of  opinion  that  it  is  not  necessary, 
either  on  principle  or  authority. 

It  is  a  long-established  legal  principle,  that  he  who  makes  a  con- 
tract freely  and  fairly  cannot  be  excused  from  performing  it  by  rea- 
son of  his  ignorance  of  the  law  when  he  made  it.  2  Kent's  Com.  (6th  ed.) 
491,  note;  i  Story  on  Eq.  sec.  iii.  If,  however,  an  exception  to 
the  application  of  that  principle  to  a  case  like  this  has  been  authori- 
tatively made,  the  defendant  is  entitled  to  the  benefit  of  it.  But  we 
do  not  find  that  such  an  exception  has  ever  been  made  by  any  judi- 
cial decision,  unless  it  be  in  a  case  in  Pennsylvania,  reported  in 
3  Barr,  428.  The  notion  of  such  an  exception  had  its  origin  in  the 
opinion  of  Lord  Alvanly,  as  reported  in  the  case  of  Hartner  v. 
Killing,  5  Esp.  R.  102.  That  was  an  action  for  goods  sold  and 
delivered,  to  which  there  was  a  plea  of  infancy,  and  a  replication  of 
a  promise  after  full  age.  The  evidence  was,  that  the  defendant, 
after  he  attained  full  age,  on  payment  being  demanded  of  him,  and 
on  being  threatened  with  an  arrest,  promised  to  give  his  note  for  the 
goods,  but  afterwards  refused  to'  give  it.  Lord  Alvanly  said  that 
the  defendant  ' '  might  bind  himself  by  a  new  promise  after  he  obtained 
his  full  age,  but  that  he  held  that  such  promise  must  be  voluntary, 
and  given  with  knowledge  that  he  then  stood  discharged  by  law;  that 
where  an  infant,  under  the  terror  of  an  arrest,  had  a  promise 
extorted  from  him,  or  where  it  was  given  ignorant  of  the  protection 
which  the  law  afforded  him,  he  should  hold  that  he  was  not  bound 
to  it.  If,  therefore,  the  jury  should  be  of  opinion  that  the  facts 
were  that  this  promise  was  so  obtained,  he  should  direct  them  to  find 
for  the  defendant."  But,  as  no  evidence  was  given,  nor  question 
made,  concerning  the  defendant's  knowledge  of  his  rights,  it  is 
manifest  that  the  only  adjudged  point  in  the  case  was,  that  his  promise 
was  made  under  a  duress/^;-  minus — threats  of  unlawful  imprison- 
ment— and  that  he  might  avoid  it  for  that  reason.  See  I?ihabita?tts  0/ 
Whitefield  \.  Longfellow,  13  Maine,  146;  i  Parsons  on  Con.  (3d  ed.) 
320.  That  case  was  first  published  in  1807.  And  the  obiter  dictum, 
as  well  as  the  adjudicated  point  in  the  case,  has  been  transferred 


462  INFANCY. 

into  most  of  the  books  of  a  later  date,  English  and  American,  which 
treat  of  the  ratification  of  an  infant's  contract.  Yet  we  have  found 
no  case  in  the  English  reports  in  which  the  ((uestion  has  been  raised, 
whether  it  is  necessary  to  the  ratification  of  sucii  contract  that  the 
new  promise  shoultl  be  made  with  knowledge  that  the  party  was 
not  legally  liable  on  his  original  contract.  And  we  find  only  one 
instance  in  which  an  English  judge  is  reported  to  have  expressed 
an  opinion  that  such  knowledge  is  necessary.  According  to  the 
report  of  the  case  of  Mnwson  v.  Biane,  in  26  Eng.  Law  &  Eq.  R. 
560,  Baron  Martin  said  that  "  a  ratification  is  an  undertaking  by  a 
person  after  he  becomes  of  full  age,  and  expresses  that,  notwith- 
standing he  is  aware  that  the  contract,  which  he  entered  into 
when  an  infant,  is  void,  he  nevertheless  is  willing  to  affirm  it  and 
treat  it  as  valid."  So  much  of  this  dictum  as  recognizes  the  neces- 
sity of  a  party's  knowledge  that  he  is  not  bound  by  his  contract  made 
during  infancy,  in  order  to  make  his  new  promise  a  legal  ratification, 
was  extra-judicial,  and  is  not  contained  in  his  opinion  in  the  same 
case,  as  reported  in  10  Exch.  212. 

In  the  courts  of  our  own  country,  we  are  aware  of  only  one  case, 
besides  the  present,  in  which  counsel  ever  raised  the  question  now 
before  us.  In  Taft  v.  Sergeant^  18  Barb.  320,  the  defendant's  coun- 
sel contended  that  his  new  promise  was  not  a  ratification,  because 
there  was  "  nothing  to  show  that,  at  the  time  it  was  made,  he  knew 
that  he  was  not  liable  by  reason  of  his  infancy."  The  decision  of 
the  court  was,  like  the  ruling  at  the  trial  of  the  present  case  —  not 
that  such  knowledge  was  necessary,  but  that  the  defendant  was 
"  presumed  to  know  the  law." 

Still,  there  are  cases  in  the  state  courts  in  which  judges  have  cited, 
with  apparent  approval,  the  position  advanced  by  Lord  Alvanly  — 
citing  the  case  of  Harmer  v.  Killing.  In  other  cases,  judges  have 
advanced  the  same  position,  without  referring  to  any  authority.  See 
Smith  V.  Mayo,  9  Mass.  64;  Ford  v.  Phillips,  i  Pick.  203;  Thing  v. 
Libbey,  16  Maine,  57;  Curtin  v.  Patton,  11  S.  &  R.  311;  Peed  v. 
j5^i-/z^arj,  4  Sneed  (Tenn.),  118;  Norris  v.  Vance,  3  Rich.  (S.  C.)  168. 
In  no  one  of  these  cases  was  a  decision  of  that  point  necessary,  and 
they  were  all  decided  on  other  grounds.  The  decision,  however,  of 
the  Supreme  Court  of  Pennsylvania,  in  the  unreasoned  case  of  Hinely 
v.  Margaritz,  3  Barr,  428,  affirming  the  judgment  of  the  Court  of 
Common  Pleas,  seems  necessarily  to  affirm  the  obiter  dictum  of  Lord 
Alvanly,  which  had  before  been  extra-judicially  recognized  by  Dun- 
can, J.,  in  Curtin  v.  Patton.  But,  with  our  views  of  the  law,  already 
stated,  we  cannot  adopt  that  decision  for  our  guidance. 

Even  if  it  had  been  adjudged,  in  5  Esp.  R.  102,  that  knowledge  of 


RATIFICATION    OF   CONTRACTS.  463 

an  infant's  rights  was  necessary  to  the  ratification  of  his  contracts 
after  he  becomes  of  age,  such  judgment  would  have  been  virtually 
overruled  by  the  numerous  cases  decided  since,  in  which  the  requi- 
sites of  a  ratification  have  been  judicially  stated,  without  mention  of 
such  knowledge.  And  if  such  knowledge  be  necessary  to  the  ratifica- 
tion of  an  infant's  contract,  by  a  new  promise  after  coming  of  age, 
why  is  it  not  necessary  in  those  cases  of  ratification,  not  by  promise, 
but  by  acts  done  or  omitted?  We  see  no  difference  in  principle  be- 
tween the  cases. 

It  may  not  be  wholly  useless  to  say,  that  in  Selwyn's  Nisi  Prius, 
Roscoe  on  Evidence,  and  Addison  on  Contracts,  the  case  of  Harmer 
V.  Kiliifig  is  cited  only  to  the  point  there  adjudged,  to  wit,  that  a 
ratifying  promise  must  be  voluntary  and  not  extorted,  omitting  the 
extra-judicial  dictum.  See,  also,  Ram  on  Legal  Judgment,  c.  5,  of 
Dicta  Expressed  on  the  Bench. 

Exceptions  overrruled.* 


3.  Recovery  Upon  the  Ratified  Promise. 
HUNT  V.  MASSEY. 

5  B.  &  Ad.  (Eng.)  902. —  1834. 

Assumpsit  by  the  plaintiff,  as  drawer  of  a  bill  of  exchange  dated 
the  ist  of  February,  1832,  for  ^loi,  payable  five  months  after  date, 
and  accepted  by  the  defendant.  Plea,  general  issue.  At  the  trial 
before  Denman,  C.  J.,  at  the  London  sittings  after  last  Michaelmas 
term,  the  following  appeared  to  be  the  facts  of  the  case:  The 
defendant  accepted  the  bill  of  exchange  in  February,  1832,  being 
then  under  age;  he  became  of  age  on  the  19th  of  June,  and  the  bill 
became  due  on  the  4th  of  July,  1832.  The  following  letter,  in  the 
defendant's  handwriting,  bearing  date  the  22d  of  June,  1832,  ad- 
dressed to  his  guardian,  was  given  in  evidence:  "  I  request  you  to 
pay  to  Mr.  W.  H.  Hunt,  ^loi,  at  your  earliest  convenience  after 
the  date  of  this  letter,  from  the  money  left  me  by  my  late  grandfather, 
Robert  Andrews,  Esq.,  for  which  I  have  given  my  bill."  This 
letter  had  been  delivered  by  the  defendant  to  the  clerk  of  the  plain- 
tiff, as  stated  in  his  examination  in  chief,  on  the  day  it  bore  date: 
on  this  cross-examination  he  stated  he  could  not  state  the  precise 
day  when  it  was  delivered.  It  was  objected  that  it  ought  to  have 
been  clearly  shown  that  the  letter  was'  written  after  the  defendant 
became  of  age:  secondly,  that  the  letter  did  not  amount  to  a 
promise  to  pay  the  bill;  and  thirdly,  that  the  plaintiff  ought  to  have 

'  Accord,  Bestor  v.  Hickev,  71  Conn.  181.      But  see  Owen  v.  l.ont;.  T12  Ma-^s.  403. 


464  INFANCY. 

declared  specially;  because  the  plaintiff  was  liable,  if  at  all,  not  by 
reason  of  his  acceptance  of  the  bill,  but  of  a  promise  made  after  he 
had  come  of  age.  The  lord  chief  justice  directed  the  jury  to  find  a 
verdict  for  the  plaintiff. 

Piatt  now  moved  for  a  new  trial,  and  contended,  first,  that  some 
evidence  ought  to  have  been  given  to  show  that  the  letter  was  writ- 
ten at  or  about  the  time  it  bore  date,  or,  at  least,  before  the  defend- 
ant attained  his  full  age;  secondly,  that  the  language  of  the  letter 
did  not  amount  to  a  promise  to  pay,  but  a  mere  request  to  a  third 
person  to  pay  on  the  defendant's  account  a  sum  of  money  to  the 
plaintiff  out  of  a  particular  fund;  and,  thirdly,  that  if  the  letter  did 
amount  to  a  promise  to  pay,  it  did  not  support  any  count  in  the 
declaration.  The  contract  in  the  special  count  to  pay  according  to 
the  tenor  and  effect  of  the  bill  of  exchange,  was  alleged  to  have 
been  made  on  the  19th  of  June.  If  the  letter  amounted  to  a  promise, 
that  promise  was  made  on  the   22d  of  June. 

[Taunton,  J.  Where  a  voidable  contract  is  made  by  a  party  under 
age  and  ratified  after  he  has  attained  his  full  age,  is  it  not  usual  to  de- 
clare on  the  original  promise?  The  first  promise  here  was  voidable, 
only.  Gibbs  v.  Merrill,  3  Taunt.  307.  As  soon  as  it  was  ratified,  it 
became  \nxidiva.^ ab initio .  Patteson,  J.  If  the  defendant  had  pleaded 
infancy  specially,  the  plaintiff  might  have  replied,  that  after  he  had  at- 
tained the  age  of  twenty-one  years,  he  assented  to  and  ratified  and  con- 
firmed the  several  promises  in  the  declaration.  And  the  letter  would 
be  good  evidence  to  support  that  replication,  for  it  is  an  order  to  the 
defendant's  agent  to  pay  the  very  money  for  which  he  had  given  the 
bill.  LiTTLEDALE,  J.  The  case  might  be  different  if  the  defendant 
had  become  of  age,  and  written  the  letter,  after  the  bill  had  become 
due;  then,  perhaps,  he  could  not  be  said  to  have  promised  to  pay 
according  to  the  tenor  and  effect  of  the  bill  of  exchange]. 

Denman,  C.  J.  The  letter  must  be  presumed /rmai/a^zV  to  have 
been  written  on  the  day  on  which  it  bore  date.  It  lay  on  the  defend- 
ant to  show  that  it  was  not;  and  if  so,  it  then  amounted  to  a  ratifica- 
tion of  the  original  promise  to  pay,  according  to  the  tenor  and  effect 
of  the  bill  of  exchange,  and  might  be  declared  on  accordingly. 

LiTTLEDALE,  Taunton  and  Patteson,  JJ.,  concurred. 

Rule  refused.' 


'  "  The  promise  made  to  pay  a  debt  contracted  during  minority,  in  legal  effect 
is  a  waiver  of  the  defence  of  infancy,  and  an  election  to  consider  it  valid.  It  is 
consequently  immaterial  whether  the  original  contract  was  entered  into  by  deed 
or   other   less   solemn    writing;  a   verbal  adoption   of   it,   after  the  party   who 


NON-VOIDABLE   CONTRACTS.  465 

Non-  Voidable  Contracts. 

THE  PEOPLE  V.  MOORES. 
4  Denio  (N.  Y.),  518.— 1847. 

Debt  on  a  bastardy  bond  in  the  penalty  of  $500,  conditioned  that 
the  defendant  Daniel  B.  Moores,  the  father  of  the  child,  would  in- 
demnify the  city  of  New  York,  where  the  child  had  been  born,  and 
every  other  county,  etc.,  which  might  be  put  to  any  expense  for  the 
support  of  the  child,  or  of  its  mother  during  her  confinement  and 
recovery  therefrom,  against  all  such  expenses.  Breach,  that  the  de- 
fendant had  not  indemnified  the  city  of  New  York,  etc.,  and  the 
city,  after  the  making  of  the  bond,  had  been  obliged  to  expend 
divers  large  sums  of  money  for  the  support  of  the  child,  etc.  Plea, 
by  the  defendant  Daniel  B.  Moores,  the  father  of  the  child,  that  he 
was  an  infant  within  the  age  of  twenty-one  years  at  the  time  of  the 
making  of  the  writing  obligatory.  Replication,  setting  out  regular 
proceedings  for  the  arrest  of  the  said  Daniel  B.  as  the  reputed  father 
of  the  child,  his  arrest,  an  order  of  filiation,  and  that  the  said  Daniel 
B.,  with  his  father  Daniel  Moores,  thereupon  entered  into  the  bond 
in  question;  whereupon  the  justices  discharged  the  said  Daniel  B. 
from  his  arrest;  concluding  with  a  verification.  Demurrer  and 
joinder. 

Bronson,  Ch.  J.  When  an  infant  is  under  a  legal  obligation  to 
do  an  act,  he  may  bind  himself  by  a  fair  and  reasonable  contract 
made  for  the  purpose  of  discharging  the  obligation.     If  this  be  not  a 

assumed  the  duty  came  of  age,  would  be  quite  as  effectual  as  a  promise  under 
seal  to  pay,  or  perform  it.  This  being  the  case,  it  is  clear  that  the  defence  of 
infancy  being  excluded,  the  voidable  contract  becomes  valid  from  the  time  it 
was  made,  and  may  be  declared  on  without  noticing  the  subsequent  confirm- 
ation further  than  to  reply  it,  if  infancy  should  be  pleaded."  West  v.  Penny, 
16  Ala.  186,  191. 

"The  minor,  on  coming  of  age,  may,  however,  fail  or  decline  to  assent  to  a 
confirmation  of  the  first  agreement,  but  may  be  willing  to  make  himself  liable 
upon  a  new  express  or  implied  undertaking,  based  on  the  original  consideration. 
He  may,  expressly  or  by  implication,  agree  to  terms  which  necessarily  create  a 
conditional,  qualified,  or  restricted  liability,  and,  in  such  case,  the  first  agree- 
ment is  not  ratified  by  the  second.  A  new  agreement  is  constituted  which  is 
operative  only  from  the  time  of  its  creation,  and  effective  according  to  its  nature. 
If  the  promise  or  act  of  the  party  after  majority  amounts  to  a  conditional  ratifi- 
cation instead  of  a  new  substantive  engagement,  the  contract  made  during 
minority  may  then  be  enforced,  but  not  until  the  condition  is  fulfilled."  Minock 
V.  Shortridge,  21  Mich.  304,  316. 

[Domestic  Relations  —  30.] 


466  INFANCY. 

general  rule,  it  is  at  the  least  one  of  pretty  wide  application,  as  a  few 
examples  will  prove.  An  infant  is  bound  to  pay  a  judgment,  or  a 
debt  contracted  for  necessaries;  and  he  may  make  a  valid  promise 
to  refund  the  money  to  any  one  who  will  satisfy  the  judgment  or 
debt.  Clarke  v.  Leslie^  5  Esp.  R.  28;  Randall  v.  Sweet,  i  Denio, 
jf6o.  An  infant  is  under  legal  obligation  to  provide  for  the  support 
of  his  wife  and  children,  and  he  is  answerable  on  his  contract  for 
necessaries  furnished  to  them.  Turner  \.  Trisby,  i  Stra.  168;  Bull. 
N.  P.  155;  Reeve's  D.  R.  234.  After  an  order  of  filiation,  an  in- 
fant is  bound  by  law  to  support  his  illegitimate  child  (i  R.  S.  642, 
sec.  2) ;  and  there  can  be  no  doubt  but  that  his  promise  to  pay  for 
necessaries  furnished  to  the  child  would  be  valid.  The  statute  also 
obliges  an  infant  to  indemnify  the  city,  town,  or  county,  against  the 
expenses  of  supporting  his  illegitimate  child,  and  makes  it  necessary 
for  him  to  enter  into  a  bond  with  sureties  for  that  purpose,  as  the 
only  means  by  which  he  can  obtain  a  discharge  from  arrest  (Id.  p. 
645,  sees.  14,  15);  and  I  think  the  statute  has  given  him  a  legal 
capacity  to  make  a  binding  obligation.  In  Baker  v.  Lovett,  6  Mass. 
80,  Parsons,  Ch.  J.,  said  infants  are  bound  by  all  acts  which  they 
are  obliged  by  law  to  do.  See,  also,  U.  S.  v.  Bainbridge,  i  Mason, 
83;  T/ie  People  v.  Miillin,  25  Wend.  698;  JVinslow  v.  Anderson, 
4  Mass.  376.  We  are  of  opinion  that  infancy  is  not  a  good  defence 
to  this  action. 

Judgment  for  the  people.' 


Sampson,  C.  J.,  in  WATSON  v.  CROSS. 
2  Duv.  (Kv.)  147. —  1865. 

This  action  was  brought  against  appellant  to  recover,  specifically, 
a  watch  and  trunk,  or  their  value,  which  are  alleged  to  be  the  prop- 
erty of  appellee,  who  sues  as  an  infant.  Appellant  answers,  and 
claims  that,  in  i860,  at  the  time  said  property  came  to  his  possession, 
he  was  a  licensed  innkeeper  in  Frankfort;  that  appellee  became  his 
guest,  and  remained  with  him  two  weeks;  that  his  entertainment,  for 
that  time,  was  worth  $28;  that  he  also  loaned  him  $15  to  go  after 
his  trunk,  and  $12  to  pay  his  traveling  expenses  to  Maysville,  where 
he  resided;  and  claims  that  he  has  a  lien  on  the  watch  and  trunk,  as 
an  innkeeper;  and  that,  in  addition  thereto,  appellee  also  pledged 
them  as  security  for  the  payment  of  the  above  named  sums  of  money, 
amounting  to  $55. 

'  See,  also,  the  statement  of  Starr  v.  PVrtg/i/  in  Lemmon  v.  Beeman,  reported 
herein,  supra. 


NON-VOIDABLE   CONTRACTS.  467 

It  appears  that  appellee  was  an  infant,  and  had  been  placed  by  his 
guardian  at  the  Kentucky  Military  Institute,  near  Frankfort;  but 
that  he  left  there  and  came  to  Frankfort,  staid  at  the  hotel  of  appel- 
lant for  two  weeks,  and  then  went  to  his  home  at  Maysville,  no 
doubt  using  the  money  furnished  by  appellant  in  payment  of  his 
traveling  expenses,  for  it  is  manifest  that  he  had  none  of  his  own. 

The  causes  were  transferred  to  equity,  and  the  Circuit  Court  on 
final  hearing  rendered  a  judgment  for  appellee  for  the  value  of  the 
watch,  chain,  and  trunk,  to  reverse  which  this  appeal  is  prosecuted. 

It  is  contended  that  appellee,  being  an  infant,  and  his  guardian 
having  provided  for  him  at  the  Military  Institute,  and  he  having 
absented  himself  therefrom  without  permission,  appellant  is  not  en- 
titled to  recover  for  his  entertainment  or  for  the  money  furnished 
him. 

Appellant,  being  an  innkeeper,  was  legally  bound  to  receive  and 
entertain  all  guests  apparently  responsible  and  of  good  conduct, 
who  might  come  to  his  house;  and,  if  he  refused  to  do  so,  he  was 
liable  alike  to  an  indictment  and  an  action  by  the  party  aggrieved  ; 
and  the  mere  fact  of  infancy  alone  in  the  applicant  would  not 
justify  him  in  any  such  refusal.  As  the  application  of  appellee  for 
entertainment  was  not,  so  far  as  the  proof  discloses,  attended  with 
circumstances  which  showed  that  he  was  acting  in  disregard  of  his 
guardian's  wishes,  and  there  is  no  evidence  that  appellant  knew  that 
was  the  case,  he  would  not  have  been  justified  in  refusing  him  merely 
because  of  his  infancy  and  consequent  legal  disability  to  contract,  and 
especially,  as  the  proof  tends  to  support  the  allegation  of  the  answer 
that  he  had  the  appearance  of  a  person  fully  grown.  Under  the 
facts  as  presented  before  him,  he  might  well  conclude  that  it  was  his 
legal  duty  to  receive  appellee  as  a  guest,  and  that  being  the  case, 
the  contract  was,  on  his  part,  compulsory,  and  the  law  will  not  ren- 
der such  a  contract  on  the  other  side  either  void  or  voidable,  upon 
the  simple  ground  of  disability  arising  from  infancy.  Where  a  party 
voluntarily  contracts  with  an  infant,  then  the  infant  may  avail  him- 
self of  his  legal  disability  and  avoid  the  contract,  if  not  for  necessa- 
ries; but  to  apply  the  principle  to  contracts  which  are  compulsory 
on  the  side  of  the  other  contracting  party,  would  be  to  make  the 
law  an  instrument  of  oppression.  It  would  be  a  legal  absurdity  to 
compel  a  man  to  make  a  contract,  and,  at  the  same  time,  permit  the 
other  party,  who  is  the  instrument  of  such  compulsion,  to  avoid 
such  contract. 


468  INFANCY. 

Non-  Voidable  Contracts :  Necessaries. 

I.   In  General. 

JOHNSON  V.  LINES. 

6  Watts  tS:  Serg.  (Pa.)  8o.—  1843. 

Edward  L.  Lines  and  William  W.  Scott,  trading  under  the  firm 
of  Lines  &  Scott,  against  David  Eckert,  administrator  of  John 
Johnson. 

This  was  an  action  of  assumpsit.  The  declaration  contained  the 
common-money  counts;  to  which  the  defendant  pleaded  that  the  in- 
testate was  an  infant  at  the  time  of  the  supposed  promises:  and  the 
plaintiffs  replied  that  the  goods  provided  were  necessaries. 

Gibson,  C.  J.  The  case  of  the  plaintiffs  below  is  poor  in  merits. 
It  appears  that  they  supplied  a  young  spendthrift  with  goods  which 
they  call  necessaries,  but  which  ill  deserve  the  name.  Their 
account  mounts  up  to  more  than  a  thousand  dollars,  comprising 
charges  for  many  articles  which  might  be  ranked  with  necessaries 
when  supplied  in  reason ;  but  not  at  the  rate  of  twelve  coats,  seven- 
teen vests,  and  twenty-three  pantaloons,  in  the  space  of  fifteen 
months  and  twenty-one  days;  to  say  nothing  of  three  bowie  knives, 
sixteen  penknives,  eight  whips,  ten  whip-lashes,  thirty-nine  hand- 
kerchiefs, and  five  canes,  with  kid  gloves,  fur  caps,  chip  hats,  and 
fancy  bag,  to  match.  Such  a  bill  makes  one  shudder.  Yet  the  jury 
found  for  the  plaintiffs  almost  their  whole  demand,  including  sums 
advanced  for  pocket-money,  and  to  pay  for  keeping  the  minor's 
horses,  which  no  one  would  be  so  hardy  as  to  call  necessaries.  How 
they  could  reconcile  such  a  verdict  to  the  dictates  of  conscience,  I 
know  not.  They  surely  could  not  complacently  look  upon  the  ruin 
of  their  own  sons,  brought  on  by  ministering  to  their  appetites,  and 
stimulating  them  with  the  means  of  gratification.  Every  father  has 
a  deeper  stake  in  these  matters  than  the  public  mind  is  accustomed 
to  suppose;  and  it  intimately  concerns  the  cause  of  morality  and 
virtue  that  the  rule  of  the  common  law  on  the  subject  be  strictly 
enforced.  The  minor  was  at  the  critical  time  of  life  when  habits  are 
formed  which  make  or  mar  the  man  —  which  fit  him  for  a  useful  life 
or  send  him  to  an  untimely  grave;  and  public  policy  demands  that 
they  who  deal  with  such  a  customer  should  do  so  at  their  peril. 
This  enormous  bill  was  run  up  at  one  store;  and  what  other  debts 
were  contracted  for  supplies  elsewhere,  we  know  not;  but  let  it  not 
be  imagined  that  the  infant's  transactions  with  other  dealers  did  not 


NON-VOIDABLE   CONTRACTS:   NECESSARIES.  469 

concern  the  plaintiffs.  "  With  a  view  to  quantity,  and  quantity 
only,"  said  Baron  Alderson,  in  Burghart  v.  Angerstein  (6  Car.  & 
P.  700),  "  you  may  look  at  the  bills  of  the  other  tradesmen  by  whom 
the  defendant  was  also  supplied;  for  if  another  tradesman  had  sup- 
plied the  defendant  with  ten  coats,  he  would  not  then  want  any 
more,  and  any  further  supply  would  be  unnecessary.  If  a  minor  is 
supplied,  no  matter  from  what  quarter,  with  necessaries  suitable  tu 
his  estate  and  degree,  a  tradesman  cannot  recover  for  any  other  sup- 
ply made  to  the  minor  just  after."  And  the  reason  for  it  is  a 
plain  one.  The  rule  of  law  is,  that  no  one  may  deal  with  a  minor; 
the  exception  to  it  is,  that  a  stranger  may  supply  him  with  necessa- 
ries proper  for  him,  in  default  of  supply  by  any  one  else;  but  his 
interference  with  what  is  properly  the  guardian's  business  must  rest 
on  an  actual  necessity,  of  which  he  must  judge,  in  a  measure,  at  his 
peril.  In  Ford\.  Fothergill  {\  Esp.  R.  211;  s.  c.  Peake's  N.  P.  C. 
299),  Lord  Kenyon  ruled  it  to  be  incumbent  on  the  tradesman, 
before  trusting  to  an  appearance  of  necessity,  to  inquire  whether 
the  minor  is  provided  by  his  parent  or  friends.  That  case  may  be 
thought  to  have  been  shaken  in  Dalton  v.  Gib  (5  Bing.  N.  C.  198), 
in  which  it  was  held  that  inquiry  is  not  a  condition  precedent  to  re- 
covery where  the  goods  seemed  to  be  necessary  from  the  outward 
appearance  of  the  infant,  though  the  mother  was  at  hand  and  might 
have  been  questioned;  but  in  Brayshmu  v.  Eaton  (Id.  231),  this  was 
explained  to  mean  that,  as  such  an  inquiry  is  the  tradesman's  affair, 
being  a  prudential  measure  for  his  own  information,  the  omission  of 
it  is  not  a  ground  of  nonsuit;  but  that  the  question  is,  on  the  fact 
put  in  issue  by  the  pleadings,  whether  the  supply  was  actually  neces- 
sary. It  is  the  tradesman's  duty  to  know,  therefore,  not  only  that 
the  supplies  are  unexceptionable  in  quantity  and  sort,  but  also  that 
they  are  actually  needed.  When  he  assumes  the  business  of  the 
guardian  for  purposes  of  present  relief,  he  is  bound  to  execute  it  as 
a  prudent  guardian  would,  and,  consequently,  to  make  himself 
acquainted  with  the  ward's  necessities  and  circumstances.  The 
credit  which  the  negligence  of  the  guardian  gives  to  the  ward,  ceases 
as  his  necessities  cease;  and,  as  nothing  further  is  requisite  when 
these  are  relieved,  the  exception  to  the  rule  is  at  an  end.  In  this 
case,  the  supply  of  articles  which  were  proper  in  kind,  was  excessive 
in  quantity.  I  impute  no  intentional  wrong  to  the  plaintiffs,  for 
they  dealt  with  the  intestate,  as  others  may  have  done,  evidently 
supposing  him  to  be  sui  juris  ;  but  I  certainly  do  blame  the  jury  for 
finding  nearly  the  whole  demand,  after  it  had  been  conceded  that  he 
was  an  infant. 

That   the   charge,    though   not   palpably  wrong   in  the  abstract, 


4  JO  INIAXCV. 

tended  to  mislead  in  its  application  to  the  facts,  is  visible  in  the  ver- 
dict it  produced.  The  defendant  went  to  the  court  for  direc- 
tion that  the  plaintiffs  could  not  lawfully  deal  with  the  infant,  even 
for  necessaries,  unless  the  guardian  had  refused  to  furnish  them; 
and  had,  for  response,  a  direction  that  "  the  plaintiffs  had  no  right 
to  deal  with  the  deceased,  unless  by  the  permission,  express  or  im- 
lilied,  of  the  guardian;  or  unless  the  guardian  had  refused  to  fur- 
nish necessaries  for  his  ward."  This  very  significant  addition  to  the 
l)rinciple  assumed  in  the  prayer  was  meant  to  indicate  a  liberty  to 
deal  by  permission  beyond  the  bounds  of  necessaries,  or  it  meant 
nothing.  It  indicated  that  an  authority  to  deal  with  a  minor  in  a 
way  to  charge  him  personally  emanates  from  this  guardian's  per- 
mission, which  is  paramount,  or  at  least  equal,  to  the  authority  so 
to  deal  with  him,  that  emanates  from  his  necessities.  The  jury 
would  naturally  so  understand  it.  And  this  was  predicated  in  refer 
ence  to  the  question  before  them,  whether  the  ward's  estate  could 
be  subjected  to  payment  for  luxuries.  They  might  readily  under- 
stand, therefore,  that  the  guardian's  permission  to  run  up  this  bill 
would  charge  the  ward's  estate  with  it,  independently  of  its  prop- 
riety. If  that  was  not  the  drift  of  the  direction,  it  is  not  easy  to 
see  why  anything  was  said  about  permission  at  all.  In  a  case  of 
doubtful  propriety,  I  can  readily  understand  how  the  guardian's 
sanction,  or  that  of  a  relative,  might  justify  a  supply  beyond  the 
limits  of  strict  necessity,  which  a  dealer  might  furnish  dafia  fide  on 
the  credit  of  the  ward;  but  though  the  guardian  might  subject  him- 
self to  payment  of  a  grossly  improvident  bill,  by  a  permission 
amounting  to  an  order,  his  connivance  at  an  improper  supply  by  a 
tradesman  would  not  subject  the  ward  to  payment  of  it.  Indeed,  it 
has  been  said  (3  Wils.  Bacon,  595,  in  marg.)  to  have  been  several 
times  decided,  that  where  credit  has  been  given  to  the  parent  or 
guardian,  the  creditor  has  no  recourse  to  the  infant.  The  guardian 
is  set  over  the  ward  for  the  very  purpose  of  preventing  him  from 
making  such  a  bill;  and  his  desertion  of  his  trust  would  not  help  the 
case  of  one  who  had  dealt  with  the  ward  mala  fide.  As,  then,  the  plain- 
tiffs were  bound  to  know  that  the  guardian  abused  his  trust  in  allow- 
ing the  infant  to  run  up  this  bill,  they  can  recover  no  more  of  it 
than  was  proper  to  relieve  the  ward's  necessities.  This  notion  that 
the  guardian's  permission  might  legitimate  the  demand,  may  have 
had  a  misguiding  influence  on  the  jury;  for  a  passive  acquaintance 
with  the  transaction,  which  the  law  would  presume  from  his  duty  to 
have  an  eye  on  the  doings  of  the  ward,  would  be  a  constructive  per- 
mission; or  it  might  be  implied  from  the  fact  that  he  had  left  the 
ward  to  shift  for  himself. 


NON-VOIDABLE   CONTRACTS:   NECESSARIES.  471 

Again.  The  defendant  prayed  direction,  "  tliat  if  the  plaintiffs 
were  justifiable  in  dealing  with  the  ward,  the  bill  is  so  exorbitant 
that  the  plaintiffs  themselves  could  not  have  considered  them  (the 
goods)  necessaries;  and  that  they  are  therefore  not  entitled  to  re- 
cover;" in  answer  to  which,  the  court  charged  that  "what  are 
necessaries,  is  a  question  of  fact  mixed  with  law.  It  is  to  be  de- 
cided by  the  jury  under  the  direction  of  the  court,  and  depends  on 
the  estate,  circumstances  and  pursuits  of  the  minor.  The  jury 
will  probably  think  this  bill  extravagant,  and  that  the  plaintiffs 
could  not  have  supposed  many  of  the  items  necessary:  some  of 
them,  they  must  have  known,  were  not  necessary.  The  plaintiffs 
cannot  recover  for  what  were  not  necessaries."  Not  a  word  in  this 
in  response  to  the  prayer  for  direction  as  to  the  effect  of  the  plain- 
tiff's consciousness  that  the  supply  was  extravagant;  though  con- 
sciousness would  affect  them  with  mala  fides,  and  deprive  them  at 
once  of  whatever  merit  they  might  otherwise  pretend  to  have  from 
the  guardian's  implied  sanction.  The  judge  said  truly,  that  what 
are  necessaries  is  a  question  mixed  of  fact  and  law;  but  he  did  not 
say,  as  he  might,  and  perhaps  ought  to  have  done,  that  an  oversup- 
ply  of  goods,  otherwise  proper,  ceases  to  be  a  supply  of  necessaries 
as  to  the  excess.  The  jury  were,  indeed,  left  to  say  what  were  neces- 
saries; but  rather  as  regards  the  sort  than  the  quantity,  in  respect 
to  which  the  effect  of  excess  was  overlooked  throughout.  Had  it 
been  properly  impressed,  the  jury  could  not  have  found  more  than 
a  fourth  part  of  the  bill.  To  them  doubtless,  belongs  the  question 
of  extravagance;  but  where  the  supply  has  been  so  grossly  profuse 
as  to  shock  the  sense,  it  is  the  business  of  the  judge  to  say  so  as 
matter  of  law,  and  charge  that  there  can  be  no  recovery  for  more 
than  was  absolutely  necessary. 

Judgment  reversed,  and  a  venire  facias  de  novo  awarded.* 


2.  For  the  Infant's  Family. 

CANTINE  V.  PHILLIPS. 

5  Harr.  (Del.)  428. — 1854. 

This  was  an  action  of  assumpsit  by  a  father-in-law,  against  the 
representatives  of  a  deceased  son,  for  board  and  other  necessaries 
furnished  his  wife,  (plaintiff's  daughter)  and  her  child  and  nurse. 
There  were  also  charges  for  board  of  the  son-in-law. 

The  case  turned  on  the  question,  whether  an  assumpsit  was  im- 
plied in  law  under    the  circumstances,  as    between     parties    bear- 

'  As  to  necessary  averments  in  the  declaration,  and  for  a  statement  as  to  when 
the  infant  and  when  the  parent  is  liable,  see  Goodman  v.  Alexander,  165  N.  Y. 
269. 


472  INFANCY. 

ing  this  relation  to  each  other.  It  was  twice  tried,  and  resulted 
finally  in  a  verdict  for  the  defendant. 

By  the  Court.  Assumpsit  by  a  father  against  the  estate  of  his 
son-in-law,  for  the  board  and  lodging  of  the  daughter  and  her  child 
and  servant,  and  also  of  the  son-in-law  himself. 

It  is  alleged  that  James  W.  Phillips,  having  married  the  daughter 
of  Cantine,  did,  at  various  times  and  for  considerable  periods,  live 
in  the  family  of  the  wife's  father;  for  which  a  compensation  is  de- 
manded in  tliis  action. 

1.  On  the  part  of  the  defendant  it  is  contended  that  no  action  can 
be  sustained  on  such  a  claim,  founded  on  any  implied  engagement 
to  pay  board.  That  as  between  father  and  daughter,  or  daughter's 
husband,  living  in  the  father's  house,  no  contract  can  be  implied  for 
the  payment  of  board. 

The  court  assents  to  this  proposition.  Persons  in  such  a  near 
connection  as  father  and  children  do  not  usually  live  together  upon 
a  footing  of  obligation  to  account  with  and  pay  for  attentions  and 
services,  or  board  and  lodging.  When  the  parties  intend  to  live  in 
that  way,  it  is  but  reasonable  to  require  that  there  should  be  an  ex- 
press understanding  between  them  to  that  effect.  That  is  what  is 
meant  by  the  distinction  between  an  express  and  an  implied  con- 
tract; and  that  does  not  mean  a  bargain  in  so  many  words  to  pay  so 
much  money  weekly;  but  the  recognition  of  this  kind  of  understand- 
ing between  them,  as  the  admission  of  the  party  that  he  was  a 
boarder  and  not  a  guest;  the  payment  of  money  as  board,  etc. 

We  therefore  express  the  opinion,  that  unless  such  an  understand- 
ing or  agreement  existed  between  the  father  and  his  son-in-law,  as  a 
matter  of  contract,  the  plaintiff  cannot  recover  in  this  case. 

2.  If  these  parties  lived  together  without  such  understanding,  but 
upon  the  expectation  or  promise  of  a  gratuity,  by  way  of  gift  or 
present,  the  plaintiff  could  not  -ecover  such   gratuity  in  an  action. 

3.  But  it  is  further  alleged,  on  the  defendant's  part,  that  if  any 
contract  had  been  proved  to  pay  board,  such  contract  was  made  by 
Phillips  when  he  was  under  age  and  did  not  bind  him.  That  is  the 
case  with  the  general  contracts  of  minors.  Being  regarded  by  the 
law  as  infants,  until  the  age  of  twenty-one,  such  persons  are  inca- 
pable of  making  general  contracts;  but  there  are  certain  contracts, 
which,  from  necessity,  they  are  allowed  to  make,  and  that  is,  for 
necessaries  for  themselves  and  family.  The  same  necessity  exists 
as  to  the  family  of  an  infant;  and  if  old  enough  to  contract  mar- 
riage, an  infant  is  liable  on  contracts  for  the  necessary  board  and 
lodging  of  his  wife  and  children.  And  if  such  liability  exists,  it  may 
be  enforced  against  the  infant's  estate,  thoneh  he  die  under  age.    . 


NON-VOIDABLE   CONTRACTS:    NECESSARIES.  473 

3.  Obligation  Quasi-Contractual. 
TRAINER  V.  TRUMBULL. 

141  Mass.  527. —  1886. 

C.  Allen,  J.  The  practical  question  in  this  case  is,  whether  the 
food,  clothing,  etc.,  furnished  to  the  defendant  were  necessaries  for 
which  he  should  be  held  responsible.  This  question  must  be  deter- 
mined by  the  actual  state  of  the  case,  and  not  by  appearances. 
That  is  to  say,  an  infant  who  is  already  well  provided  for  in  respect 
to  board,  clothing,  and  other  articles  suitable  for  his  condition,  is  not 
to  be  held  responsible  if  any  one  supplies  to  him  other  board,  cloth- 
ing, etc.,  although  such  person  did  not  know  that  the  infant  was 
already  well  supplied.  Angel  v.  McLellan,  16  Mass.  28;  Swift  v. 
Bennett,  10  Cush.  436;  Davis  v.  Caldwell,  12  Cush.  512;  Barnes  v. 
Toye,  13  Q.  B.  D.  410.  So,  on  the  other  hand,  the  mere  fact  that 
an  infant,  as  in  this  case,  had  a  father,  mother,  and  guardian,  no 
one  of  whom  did  anything  towards  his  care  or  support,  does  not 
prevent  his  being  bound  to  pay  for  that  which  was  actually  neces- 
sary for  him  when  furnished.  The  question  whether  or  not  the  infant 
made  an  express  promise  to  pay  is  not  important.  He  is  held  on  a 
promise  implied  by  law,  and  not,  strictly  speaking,  on  his  actual 
promise.  The  law  implies  the  promise  to  pay,  from  the  necessity  of 
his  situation;  just  as  in  the  case  of  a  lunatic,  i  Chit.  Con.  (nth 
Am.  ed.)  197;  Hyman  v.  Cain,  3  Jones  (N.  C.)  in;  Richardson  v. 
Strong,  13  Ired.  106;  Gay  v.  Ballon,  4  Wend.  403;  Epperson  v. 
Nugent,  57  Miss.  45,  47.  In  other  words,  he  is  liable  to  pay  only 
what  the  necessaries  were  reasonably  worth,  and  not  what  he  may 
improvidently  have  agreed  to  pay  for  them.  If  he  has  made  an  ex- 
press promise  to  pay,  or  has  given  a  note  in  payment  for  necessaries, 
the  real  value  will  be  inquired  into,  and  he  will  be  held  only  for  that 
amount.  ±Larle  v.  Reed,  10  Met.  387;  Locke  v .  Smith,  \\  N.  H.  346; 
Met.  Con.  73,  75. 

But  it  is  contended  that  the  board,  clothing,  etc.,  furnished  to  the 
defendant  were  not  necessaries,  because  he,  "  being  a  pauper  and  an 
inmate  of  an  almshouse,  was  supplied  with  necessaries  suitable  to 
his  estate  and  condition,  and,  under  the  circumstances,  it  would  have 
been  the  duty  of  the  guardian  to  place  him  in  the  almshouse."  It 
is  true  that  a  guardian  is  not  obliged  to  provide  for  the  support  of  his 
ward,  when  he  has  no  property  of  the  ward  available  for  that  pur- 
pose; and,  if  he  has  no  other  resource,  no  doubt  he  may,  under 
such  circumstances,  place  the  ward  in  an  almshouse.     The  authori- 


474  INFANCY. 

ties  cited  for  the  defendant  go  no  further  than  this.  Spring  v. 
IVooilwort/i,  2  Allen,  206.  But  this  by  no  means  implies  that  a  boy 
with  an  expectation  of  a  fortune  of  $10,000  should  be  brought  up  in 
an  almshouse,  if  any  suitable  person  will  take  him  and  bring  him 
up  properly,  on  the  credit  of  his  expectations.  On  the  other  hand, 
it  seems  to  us  highly  proper  for  a  parent  or  guardian,  under  such 
circumstances,  to  do  what  the  father  did  in  this  case;  leaving  it  for 
the  boy's  guardian  to  see  to  it  that  an  unreasonable  price  is  not 
paid.  Looking  to  the  advantage  of  his  subsequent  life,  as  well  as 
to  his  welfare  for  the  time  being,  his  transfer  from  an  almshouse,  to 
a  suitable  person,  by  whom  he  would  be  cared  for  and  educated,  would 
certainly  be  judicious;  and  the  support  and  education  furnished  to 
an  infant  of  such  expectations,  whose  means  were  not  presently 
available,  fall  clearly  within  the  class  of  necessaries.  In  Met.  Con. 
70,  the  authority  of  Lord  Mansfield  is  cited  to  the  point  that  a  sum 
advanced  for  taking  an  infant  out  of  jail  is  for  necessaries.  Buck- 
inghamshire V.  Drury,  2  Eden,  60,  72.  See,  also,  Clarke  v.  Leslie^ 
5  Esp.  28.  Giving  credit  to  the  infant's  expectation  of  property  is 
the  same  as  giving  credit  to  him.  There  was  no  error  in  refusing  to 
rule,  as  matter  of  law,  that,  upon  all  the  facts  in  evidence,  the  action 
could  not  be  maintained.  The  findings  of  all  matters  of  fact,  of 
course,  are  not  open  to  revision. 
Exceptions  overruled. 


4.  What  are  Necessaries, 

NEW  HAMPSHIRE  MUT.  FIRE  INS.  CO.  v.  NOYES. 

32  N.  H.  345-— 1855. 

Assumpsit  on  the  premium  note  of  the  defendant  for  the  sum  of 
forty  dollars,  made  DecemJDer  7,  1847,  payable  to  the  plaintiffs,  in 
such  portions  and  at  such  times  as  their  directors  might,  agreeably 
to  the  act  of  incorporation,  require. 

The  plea  was  infancy;  to  which  the  plaintiffs  replied,  first,  that 
the  defendant,  after  he  became  of  age,  ratified  and  confirmed  his 
promise;  and,  secondly,  that  the  note  declared  on  was  given  for 
necessaries.  Issue  was  joined  upon  both,  and  the  case  submitted 
for  decision  upon  an  agreed  statement  of  facts. 

Fowler,  j  *  *  *  The  remaining  question  we  have  carefully 
considered.  For,  as  has  been  well  suggested  by  the  plaintiff's  coun- 
sel, although  an  infant  might  not  be  liable  to  pay  for  the  goods  con- 
stituting his  stock  in  trade,  yet,  having  the  goods,  and  being  so  en- 


NON-VOIDABLE   CONTRACTS:   NECESSARIES.  475 

gaged  in  trade,  it  would  manifestly  be  for  his  interest,  and  would 
seem  almost  necessary  for  the  security  of  his  property,  that  it  should 
be  insured  against  loss  or  damage  by  fire.  But  it  is  evident  from 
the  most  cursory  examination,  that  the  contract  being  advantageous 
or  disadvantageous  to  the  infant  or  his  estate,  furnishes  no  reliable 
test  on  the  point,  as  to  whether  or  not  the  subject  matter  of  such 
contract  is  properly  included  within  the  term  necessaries.  Very 
many  things  can  be  mentioned,  the  acquisition  of  which  must  un- 
doubtedly have  been  beneficial  to  the  infant  or  his  estate,  contracts 
for  which  have  been  repeatedly  and  uniformly  holden  voidable,  at 
the  election  of  the  infant. 

In  Phelps  V.  Worcester,  11  N.  H.  51,  it  was  holden  that  the  ser- 
vices and  expenses  of  counsel  in  carrying  on  a  suit  to  protect  the  in- 
fant's title  to  his  estate,  could  not  be  regarded  as  necessaries,  and 
that  the  infant's  liability  for  them  might  be  avoided,  even  under  an 
express  promise  to  pay  for  them.  Upham,  J.,  in  pronouncing  the 
opinion  of  the  court,  remarked  —  "  The  inquiry  has  been  made,  if 
there  had  been  no  guardian,  and  the  infant  were  without  aid,  whether 
he  might  not  employ  others  to  protect  his  rights  to  his  property, 
and  be  legally  holden,  notwithstanding  the  interposition  of  his  minor- 
ity. We  think  clearly  not.  Though  such  services  may  promote 
the  sound  interests  of  the  ward  [infant  ?J  they  are  not  such  assist- 
ance as  comes  within  the  term  necessaries.  Lord  Coke  considers 
the  necessaries  of  the  infant  to  include  victuals,  clothing,  medical 
aid,  and  good  teaching  or  instruction,  whereby  he  may  profit  after- 
wards. Coke  Lit,  172  a.  Such  aid  concerns  the  person  and  not 
the  estate,  and  we  know  of  no  authority  which  goes  beyond  this." 

Now  if  the  services  and  expenses  of  counsel  in  protecting  the 
property  of  an  infant  are  not  necessaries,  on  what  principle  can  it 
be  contended  that  the  insurance  of  that  property  against  loss  by  fire 
can  be?  The  object  is  the  same  in  both  cases  —  the  protection  and 
security  of  the  infant's  property;  and  instances  can  readily  be  con- 
ceived where  the  services  of  learned  and  experienced  counsel  might 
be  quite  as  valuable  and  important  as  any  contract  of  insurance. 
The  test  of  beneficiality,  then,  cannot  be  relied  on  as  determining 
whether  or  not  a  thing  is  to  reckoned  among  necessaries. 

But  it  seems  to  us  the  suggestion  in  the  case  last  cited,  that  neces- 
saries concern  the  person  and  not  the  estate,  furnishes  the  true 
test  on  this  subject.  Although  there  may  be  isolated  cases  where  a 
contrary  doctrine  has  obtained,  we  apprehend  the  true  rule  to  be, 
that  those  things,  and  those  only,  are  properly  to  be  deemed  neces- 
saries, which  pertain  to  the  becoming  and  suitable  maintenance,  sup- 
port,   clothing,    health,    education   and    appearance   of    the   infant, 


476  INFANCY. 

according  to  his  condition  and  rank  in  life,  the  employment  or  pur- 
suit in  which  he  is  engaged,  and  the  circumstances  under  which  he 
may  be  placed  as  to  profession  or  position.  Coke  Lit.  172  a; 
W hitting  ham  v.  Hill,  Cro.  Jac.  494;  Ivc  v.  Chester,  Cro.  Jac.  560. 

If  this  be  so,  then  matters  which  pertain  only  to  the  preservation, 
protection,  or  security  of  the  infant's  property,  are  excluded  from 
the  list  of  necessaries,  however  beneficial.  Whatever  relates  to  his 
property  is  the  legitimate  business  of  a  guardian,  and  if  transacted 
by  the  infant  may  be  avoided  at  his  election. 

Such  are  our  convictions  of  the  proper  limit  of  the  validity  of  the 
contracts  of  infants.  Any  other  limitation  would,  it  seems  to  us, 
lead  to  an  almost  interminable  variety  of  decisions  on  this  subject, 
and  tend  to  destroy  those  safeguards  which  the  wisdom  of  the  law 
has  established  to  protect  the  inexperience  and  credulity  of  youth 
against  the  wiles  and  machinations  of  designing  men.  We  are  satis- 
fied that  the  principle  of  the  adjudged  cases  does  not  require,  nor 
would  sound  policy  justify  our  holding,  that  a  contract,  made  by  a 
minor  for  the  protection  or  preservation  of  his  property  by  insurance 
against  fire,  is  a  contract  for  necessaries,  within  the  legal  accepta- 
tion of  that  term,  however  judicious  or  beneficial  such  contract 
might  ordinarily  be  regarded. 

Had  we  arrived  at  a  different  conclusion  on  the  last  point,  the 
question  might  have  arisen,  whether  this  action  could  be  maintained 
on  the  present  declaration,  the  only  count  in  the  writ,  so  far  as 
appears,  being  upon  the  note,  which  is  avoided  by  the  plea  of  in- 
fancy, the  same  not  having  been  ratified  by  the  defendant  after  he 
became  of  age.  The  result  to  which  we  have  come,  however,  ren- 
ders it  unnecessary  to  enter  upon  this  inquiry. 

According  to  the  provisions  of  the  agreed  case,  there  must  be 
judgment  for  the  defendant.' 


JORDAN  V.  COFFIELD  and  Wife. 

70  N.  C.  no. —  1874. 

Settle,  J.  The  plaintiff,  who  is  a  merchant,  furnished  to  the 
feme  defendant  certain  articles,  just  previous  to  her  marriage,  consist- 
ing of  a  chamber  set  and  other  articles,  constituting  her  bridal  outfit, 
amounting  in  all  to  the  value  of  $104.25.  It  is  conceded  that  the 
chamber  set  is  still  in  the  possession  and  use  of  the  defendants. 

To  the  plea  of  infancy,  the  plaintiff  replies,  necessaries. 

The  evidence  in  regard  to  the  estate  and  degree  of  the  /<?;«^  defend- 
ant is  set  forth  in  the  record. 

'  See,  also,  Barker  v,  Hibbard,  54  N.  H.  539;    Crafts  v.  Carr,  24  R.  I.  397. 


NON-VOIDABLE    CONTRACTS:   NECESSARIES.  477 

His  honor  charged  that  if  the  jury  believed  the  articles  furnished 
were  actually  necessary,  and  of  a  reasonable  price,  the  plaintiff  was 
entitled  to  recover.  The  record  simply  states  that  the  defendant 
excepted.     But  we  see  no  objection  to  this  charge. 

In  Smith  v.  Young,  2  Dev.  &  Bat.  26,  Daniel,  J.,  states  the  rule 
governing  such  cases  with  great  clearness.  He  says:  "  The  ques- 
tion whether  necessaries  or  not,  is  a  mixed  question  of  law  and  fact, 
and  as  such  should  be  submitted  by  the  judge  to  the  jury,  together 
with  his  directions  upon  the  law;  whether  articles  furnished  to  an 
infant  are  of  the  classes  for  which  he  is  liable,  is  matter  of  law; 
whether  they  are  actually  necessary  and  of  reasonable  price,  is  matter 
of  fact  for  the  jury." 

In  addition  to  the  authorities  cited  by  the  learned  judge  in  sup- 
port of  this  proposition  we  would  add  the  recent  case  of  Ryder  v. 
Wombwell,  decided  in  the  Court  of  Exchequer,  and  reported  in  Law 
Reports  of  1868-9,  P^g^  Z^- 

His  honor  is  to  be  understood  as  holding  the  articles  furnished  to 
be  of  the  class  for  which  the  defendant  would  be  liable,  and  it  appears 
from  the  record  that  there  was  evidence,  which  was  well  left  to  the 
jury,  and  from  which  they  might  have  properly  found  that  the  arti- 
cles were  necessary  to  one  in  the  degree  and  condition  of  the  defend- 
ant, and  that  they  were  of  reasonable  price.  There  is  an  exception 
to  the  general  rule,  that  an  infant  is  incapable  of  binding  himself  by 
a  contract  made,  not  in  favor  of  tradesmen,  but  for  the  benefit  of 
the  infant  himself,  in  order  that  he  may  obtain  necessaries  on  credit. 
As  is  well  said  in  Hyman  v.  Cain,  3  Jones,  iii,  "  infants  had  better 
be  held  liable  to  pay  for  necessary  food,  clothing,  etc.,  than  for  the 
want  of  credit,  to  be  left  to  starve." 

Nor  are  we  to  understand  by  the  word  necessaries  only  such  arti- 
cles as  are  absolutely  necessary  to  support  life,  but  it  includes  also 
such  articles  as  are  suitable  to  the  state,  station  and  degree  in  life 
of  the  person  to  whom  they  are  furnished.  Peters  v.  Fleming, 
6  M.  &  W.  46. 

Although  the  point  is  not  distinctly  made,  upon  the  record,  yet  it 
would  seem  that  the  defendant  relies  somewhat  upon  the  idea  that 
her  mother  was  bound  to  support  her,  notwithstanding  the  fact  that 
she  had  some  estate  of  her  own.  The  obligation  of  the  mother  is 
not  the  same  as  that  of  the  father  to  support  infant  children,  and 
the  weight  of  authority,  both  in  this  country  and  in  England,  is 
against  the  liability  of  the  mother  tQ  this  burden,  except  under 
peculiar  circumstances,      i  Parsons  on  Con.  (5th  ed.),  p.  308. 

Let  it  be  certified  that  there  is  no  error. 

Judgment  affirmed. 


478  INFANXY. 

5.  Executory  Contract  for  Necessaries. 
GREGORY  V.  LEE. 

64  CoNX.    407. —  1894. 

Torrance,  J.  The  complaint  in  this  case  alleges  that  on  the  first 
of  June,  1892,  the  defendant,  being  a  student  at  Yale  C'ollege, 
entered  into  a  contract  with  the  plaintiff  by  which  he  leased  a  room 
for  the  ensuing  college  year  of  forty  weeks,  at  an  agreed  rate  of  $10 
per  week,  payable  weekly,  and  immediately  entered  into  possession 
of  said  room,  and  has  neglected  and  refused  to  pay  the  rent  of  said 
room  for  ten  weeks  ending  February  7th,  1893. 

The  answer  in  substance  is  as  follows: 

On  or  about  September  15th,  1892,  the  defendant  agreed  to  lease 
a  room  in  the  house  of  the  plaintiff  for  the  ensuing  college  year  of 
forty  weeks,  at  the  agreed  rate  of  $10  per  week,  payable  weekly; 
that  he  then  entered  into  possession  of  said  room  and  occupied  it 
till  December  20th,  1892 ;  that  on  said  day  he  gave  up  possession  of 
said  room  and  ceased  to  occupy  the  same,  and  then  paid  to  the  plain- 
tiff all  he  owed  her  for  such  occupation  and  possession  up  to  that 
time;  that  immediately  thereafter  he  engaged  at  a  reasonable  price 
another  suitable  room  elsewhere,  and  continued  to  possess  and  occupy 
the  same  till  the  end  of  said  college  year;  that  during  all  of  said 
period  he  was  a  minor  and  a  student  in  said  college;  that  on  Decem- 
ber 20th,  1892,  he  refused  to  fulfill  said  agreement  with  the  plaintiff 
to  occupy  or  pay  for  said  room  for  the  remainder  of  said  forty  weeks, 
and  has  always  refused  to  pay  for  the  time  during  which  he  did  not 
possess  or  occupy  said  room. 

The  reply  to  the  answer  was  as  follows: 

"  Par.  I.   Plaintiff  admits  all  the  allegations  of  said  defence. 

"  Par.  2.  Defendant  at  the  time  of  making  said  contract  was 
between  nineteen  and  twenty  years  of  age. 

"  Par.  3.  Defendant  and  his  parents  are  residents  of  the  Island  of 
Trinidad.  His  father  makes  him  an  annual  allowance  out  of  which  he 
is  expected  to  defray  all  his  college  expenses,  including  room  and 
board,  transacting  the  business  incidental  thereto  in  his  own  name 
and  not  on  account  of  his  father. 

"  Par.  4.  It  is  the  general  custom  among  students  and  lodging- 
house  keepers  to  rent  rooms  for  the  college  year  of  forty  weeks,  and 
students  also  usually  contract  for  and  pay  tuition  by  the  year.  De- 
fendant, at  the  time  of  renting  said  rooms,  had  contracted  for  his 
tuition  during  the  college  year. 


NON-VOIDABLE   CONTRACTS:   NECESSARIES.  479 

"  Par.  5.  The  rent  charged  for  the  room  was  fair  and  reasonable, 
and  was  suitable  to  his  necessities  as  a  student  and  to  his  condition 
in  life.  It  was  also  necessary  for  him  to  have  a  room  as  a  place  of 
lodging  and  study  during  his  college  year. 

"  Par.  6.  Defendant  could  not  have  obtained  a  room  equally  suita- 
ble for  his  purpose  nor  on  such  advantageous  terms  if  he  had  not 
contracted  for  the  year,  except  by  going  to  a  hotel  and  paying  the 
usual  charges  made  by  hotels  for  such  period  as  he  wished  to  stay. 
The  cost  ot  this  would  have  been  considerably  greater. 

"  Par.  7.  Owing  to  the  custom  above  noted,  plaintiff  cannot  rent 
her  room  for  the  balance  of  the  year  and  will  be  subjected  to  great 
loss,  unless  defendant  is  compelled  to  pay  rent  for  the  balance  of 
said  period." 

There  was  also  filed  in  the  case  a  second  defence  and  a  reply  to 
the  same,  which,  in  view  of  the  conclusion  reached  upon  the  first 
defence  and  reply  thereto,  need  not  be  considered. 

To  the  reply  above  set  out  the  defendant  demurred  specially,  the 
court  below  sustained  the  demurrer,  and  judgment  was  rendered  for 
the  defendant.  The  sole  reason  of  appeal  is  the  claimed  error  of  the 
court  in  sustaining  the  demurrer. 

Upon  this  appeal  the  facts  stated  in  the  answer,  and  also  in 
the  reply,  so  far  as  the  same  are  well  pleaded,  must  be  taken  to  be 
true. 

It  thus  appears  that  the  defendant,  a  minor,  agreed  to  hire  the 
plaintiff's  room  for  forty  weeks  at  $10  per  week,  and  that  he  entered 
into  possession  and  occupied  it  a  part  of  said  period;  that  he  gave 
up  and  quit  possession  of  the  room  and  refused  to  fulfil  said  agree- 
ment on  the  20th  of  December,  1892,  paying  in  full  for  all  the  time 
he  had  occupied  it;  that  he  has  never  occupied  it  since,  but  has 
been  paying  for  and  occupying  a  suitable  room  elsewhere. 

Under  the  facts  stated,  it  must  be  conceded  that  this  room,  at  the 
time  the  defendant  hired  it  and  during  the  time  he  occupied  it,  came 
within  the  class  called  "  necessaries,"  and  also  that  to  him  during 
said  period  it  was  an  actual  necessary;  for  lodging  comes  clearly 
within  the  class  of  necessaries,  and  the  room  in  question  was  a  suitable 
and  proper  one,  and  during  the  period  he  occupied  it,  was  his  only 
lodging  room.  "  Things  necessary  are  those  without  which  an  in- 
dividual cannot  reasonably  exist.  In  the  first  place,  food,  raiment, 
lodging  and  the  like.  About  these  there  is  no  doubt."  Chappie  v. 
Cooper^  13  M.  &  W.  252;   I  Swift's  Digest,  52. 

So  long,  then,  as  the  defendant  actually  occupied  the  room  as  his 
sole  lodging  room  it  was  clearly  a  necessary  to  him,  for  the  use  of 
which  the  law  would  compel  him  to  pay;  but  as  he  paid  the  agreed 


48o  INFANCY. 

price  for  the  time  he  actually  occupied  it,  no  question  arises  upon 
that  part  of  the  transaction  between  these  parties. 

The  question  now  is  whether  he  is  bound  to  pay  for  the  room  after 
December  20th,  1892.  The  obligation  of  an  infant  to  pay  for  neces- 
saries actually  furnished  to  him  does  not  seem  to  arise  out  of  a  con- 
tract in  the  legal  sense  of  that  term,  but  out  of  the  transaction  of  a 
^?/<w/ contractual  nature;  for  it  may  be  imposed  on  an  infant  too 
young  to  understand  the  nature  of  a  contract  at  all.  Hyman  v. 
Kain,  3  Jones'  L.  (N.  C.)  in.  And  where  an  infant  agrees  to  pay 
a  stipulated  price  for  such  necessaries,  the  party  furnishing  them 
recovers  not  necessarily  that  price,  but  only  the  fair  and  reasonable 
value  of  the  necessaries.  Earl  v.  Reed,  10  Met.  387;  Barnes  v. 
Barnes,  50  Conn.  572;  Trainer  v.  Trumbull,  141  Mass.  527;  Keener's 
Quasi  Contracts,  p.  20.  This  being  so,  no  binding  obligation  to  pay 
for  necessaries  can  arise  until  they  have  been  supplied  to  the  infant; 
and  he  cannot  make  a  binding  executory  agreement  to  purchase 
necessaries.  For  the  purposes  of  the  case,  perhaps  we  may  regard 
the  transaction  which  took  place  between  these  parties  in  Septem- 
ber, 1892,  either  as  an  agreement  on  the  part  of  the  plaintiff  to  sup- 
ply the  defendant  with  necessary  lodging  for  the  college  year,  and 
on  the  part  of  the  defendant  as  an  executory  agreement  to  pay  an 
agreed  price  for  the  same  from  week  to  week;  or  we  may  regard  it 
as  what,  on  the  whole,  it  appears  the  parties  intended  it  to  be,  a 
parol  lease  under  which  possession  was  taken,  and  an  executory  agree- 
ment on  the  part  of  the  defendant  to  pay  rent.  If  we  regard  it  in 
the  former  light,  then  the  defence  of  infancy  is  a  good  defence;  for 
in  that  case  the  suit  is  upon  an  executory  contract  to  pay  for  neces- 
saries which  the  defendant  refused  to  take,  and  never  has  had,  and 
which,  therefore,  he  may  avoid.  If  we  regard  the  transaction  as  a 
lease  under  which  possession  was  taken,  executed  on  the  part  of  the 
plaintiff,  with  a  promise  or  agreement  on  the  part  of  the  defend- 
ant to  pay  rent  weekly,  we  think  infancy  is  equally  a  defence. 

As  a  general  rule,  with  but  few  exceptions,  an  infant  may  avoid  his 
contracts  of  every  kind,  whether  beneficial  to  him  or  not,  and 
whether  executed  or  executory.  Riley  v.  Mallory,  33  Conn.  201. 
The  alleged  agreement  in  this  case  does  not  come  within  any  of  the 
recognized  exceptions  to  this  general  rule.  "  An  infant  lessee  may 
also  avoid  a  lease,  although  it  is  always  available  for  the  purpose  of 
vesting  the  estate  in  him  so  long  as  he  thinks  proper  to  hold  it. 
*  *  *  As  to  his  liability  for  rent,  or  the  performance  of  the  stipu- 
lations contained  in  the  lease,  he  is  in  the  same  situation,  with 
respect  thereto,  as  in  case  of  any  other  contract;  for  he  may  dis- 
affirm it  when  he  comes  of  age,  or  at  any  time  previous  thereto,  and 


NON-VOIDABLE   CONTRACTS:    NECESSARIES.  481 

thus  avoid  his  obligation."  Taylor's  Landlord  and  Tenant,  sec.  96. 
In  this  case  the  defendant  gave  up  the  room  and  repudiated  the 
agreement,  so  far  as  it  was  in  his  power  to  do  so,  in  the  most  positive 
and  unequivocal  manner. 

The  plea  of  infancy  then,  under  the  circumstances,  must  prevail, 
unless  the  matters  set  up  in  the  reply  make  the  facts  set  up  in  the 
answer  unavailable  in  this  case.  Upon  this  point,  without  dwelling 
in  detail  upon  the  matters  set  up  in  the  different  paragraphs  of  the 
reply,  we  deem  it  sufficient  to  say  that  neither  singly  nor  combined 
do  the  matters  so  set  up  constitute  a  sufficient  reply  to  the  answer. 

There  is  no  error. 

In  this  opinion  the  other  judges  concurred.  ' 


6.  Liability  for  Money  Loaned  for  Necessaries. 

SWIFT  AND  Others  v.  BENNETT. 
10  CusH.  (Mass.)  436. —  1852. • 

Assumpsit  on  an  account  annexed,  and  on  the  money  counts. 

In  addition  to  the  general  issue,  the  defendant  pleaded  infancy. 
At  the  trial  in  the  Court  of  Common  Pleas,  the  plaintiffs  offered 
evidence  that  Jireh  Swift,  Jr.,  and  four  other  persons,  were  owners, 
and  Swift  &  Allen  were  agents,  of  the  ship  Tacitus ;  that  in  the  summer 
of  the  year  1844,  the  defendant  contracted  to  go  on  a  whaling  voy- 
age in  said  ship,  in  the  capacity  of  boat  steerer;  that  O.  H.  P.  Brown 
&  Co.  furnished  the  defendant  with  the  usual  and  necessary  outfit 
of  clothing  for  such  a  voyage,  and  received  therefor  the  follow- 
ing order:  "  New  Bedford,  June  25,  1844.  Agent  and  owners 
of  the  ship  Tacitus.  Six  months  from  date,  for  value  received,  pay 
O.  H.  P.  Brown  &  Co.,  or  order,  $75,  and  charge  the  same  to  account. 
Daniel  Bennett." 

This  order  was  presented,  and  paid  by  the  plaintiffs  at  its  ma- 
turity, to  O.  H.  P.  Brown  &  Co. 

On  the  part  of  the  defendant,  it  was  proved  that  at  the  time  he 
was  furnished  with  his  outfit,  and  the  date  of  the  order  and  its  pay- 
ment, he  was  an  infant.  The  plaintiffs  claimed  to  recover  on  the 
ground  that  the  articles  furnished  were  necessaries.  The  defend- 
ant's counsel  objected  to  the  introduction,  by  the  plaintiffs,  of  the 
books  of  account  of  O.  H.  P.  Brown  &  Co.,  and  to  the  testimony  of 
William  H.  Wrightington,  one  of  the  firm  of  O.  H.  P.  Brown  &  Co., 
which  were  offered  for  the  purpose  of  proving  that  necessary  articles 
of  clothing  were  furnished  to  the  defendant,  and  paid  for  by  the 
plaintiffs  at  his  request,  and  contended  that  such  evidence  was 
[Domestic  Relations  —  31.] 


482  INKANCY. 

inadmissible  to  maintain  the  money  counts  in  the  writ.  But  the  judge 
overruled  the  objection,  and  admitted  the  evidence.  The  defendant 
also  contended  that  an  infant,  living  with  his  mother,  if  the  father 
was  dead,  could  not  bind  himself  even  by  a  contract  for  necessaries. 
But  the  judge  instructed  the  jury  that  if  the  goods  furnished  by 
O.  H.  P.  Brown  &  Co.  were  necessary  clothing  for  the  defendant  on 
his  intended  voyage,  and  that  the  defendant  gave  an  order  on  the 
plaintiffs  in  payment  therefor,  which  order  was  subsequently  accepted 
and  paid  by  the  plaintiffs,  the  plaintiffs  could  maintain  their  action 
on  the  count  for  money  laid  out  and  expended  by  them  at  the 
defendant's  request  for  necessaries  furnished  to  him. 
^  The  jury  returned  a  verdict  for  the  plaintiffs.  And  to  the  fore- 
going rulings  the  defendant  excepted. 

BiGELOW,  J.  The  first  objection  relied  on  by  the  defendant  is, 
that  he  is  not  liable  in  this  action  because,  at  the  time  the  articles  in 
question  were  furnished  to  him  he  had  his  home  with  his  mother, 
who  made  suitable  provision  for  his  maintenance.  But  we  think, 
this  question  is  not  open  upon  this  bill  of  exceptions.  One  of  the 
important  elements  which  always  enters  into  an  inquiry  as  to  an 
infant's  liability  for  necessaries  is,  whether  he  had  a  parent  or 
guardian  able  and  willing  to  support  him.  If  he  had,  then  there  can 
have  been  no  necessity  for  the  supplies  furnished  him,  and  his 
responsibility  therefor  must  fail.  But  this  is  always  a  question  of 
fact,  and  in  the  present  case  it  was  properly  submitted  to  the  jury, 
under  the  instruction  from  the  court  which  required  them  to  find 
whether  the  articles  furnished  were  necessary  clothing  for  the  defend- 
ant. This  involved  the  inquiry  of  the  mother's  ability  and  willing- 
ness to  support  her  son.  The  defendant  is,  therefore,  concluded  on 
this  point  by  the  verdict  of  the  jury. 

The  next  objection  urged  by  the  defendant  proceeds  on  a  miscon- 
ception of  the  ground  of  the  plaintiff's  action.  The  suit  is  not  brought 
upon  the  order  or  draft  of  the  defendant,  which  was  accepted  and 
paid  by  the  plaintiffs.  They  do  not  seek  to  charge  him  as  drawer  of 
this  order.  The  action  is  brought  to  recover  money  paid,  laid  out, 
and  expended  by  the  plaintiffs  at  the  defendant's  request,  for  neces- 
saries furnished  to  him.  The  order  is  introduced  only  as  evidence 
of  the  request  and  of  the  amount  furnished  and  paid  for  by  the 
plaintiffs.  The  gist  of  the  defendant's  liability  in  this  action  is  the 
payment  of  money,  by  the  plaintiffs,  at  his  request,  for  neces- 
saries. We  suppose  the  rule  to  be  well  settled  that  an  infant  is  lia- 
ble to  an  action  at  the  suit  of  a  person  advancing  money  to  a  third 
party  to  pay  for  necessaries  furnished  to  the  infant,  but  that  he  is 
not  liable  for  money  supplied  to  him,  to  be  by  him  expended,  although 


NON-VOIDABLE    CONTRACTS:   NECESSARIES.  483 

it  may  actually  be  laid  out  for  necessaries.  The  reason  for  this 
distinction  is,  that  in  the  latter  case  the  contract  arises  upon  the 
lending,  and  that  the  law  will  not  support  contracts  which  are  to 
depend  for  their  validity  upon  a  subsequent  contingency.  20  Amer. 
Jur.  281,  283;  Macpherson  on  Inf.  506;  £llis\.  Ellis,  5  Mod.  368; 
Earle  v.  Feale,  i  Salk.  387;  10  Mod.  67;  Rearsley  6-  Cuffers  Case, 
Godb.  219.  So,  too,  it  has  been  held  that  if  one  who  is  surety  on 
a  note  given  by  an  infant  for  necessaries,  pays  the  money,  the  infant 
is  liable  to  him  in  an  action  for  reimbursement.  Conn  v.  Coburn, 
7  N.  H.  368.  The  present  case  seems  very  clearly  to  fall  within 
the  principle  recognized  and  established  in  these  decisions,  by  which 
an  infant  is  held  liable  for  money  advanced  to  pay  for  necessaries 
furnished  to  him.  The  transaction  betw^een  the  parties  was  equiva- 
lent to  an  advancement  by  the  plaintiffs  to  Brown  &  Co.,  to  pay  for 
the  articles  furnished  by  them  to  the  defendant.  The  goods  were, 
in  fact,  not  sold  by  Brown  &  Co.  to  the  defendant,  on  his  credit, 
but  they  were  delivered  to  him  on  the  credit  of  the  plaintiffs. 
Brown  isc  Co.  were,  in  a  certain  sense,  the  agents  of  the  plaintiffs  in 
supplying  the  defendant  with  the  goods.  The  dealing  between  the 
parties  was  tantamount  to  an  agreement  between  them,  that  Brown 
&  Co.  should  furnish  necessaries  to  the  defendant  for  which  the 
plaintiffs  were  to  pay.  It  does  not,  therefore,  come  within  the  rule 
that  money  lent  to  an  infant,  to  be  expended  by  him  in  the  purchase 
of  necessaries,  cannot  be  recovered.  It  is  the  payment,  by  the  plain- 
tiffs, of  money  to  a  third  person,  for  necessaries  supplied  to  the  de- 
fendant, for  which  an  action  may  well  be  maintained  against  him. 

The  objection  to  the  testimony  of  Wrightington,  one  of  the  firm 
of  Brown  &  Co.,  and  to  the  introduction  of  the  books  of  the  firm  in 
evidence,  cannot  be  supported.  It  being  necessary  for  the  plaintiffs 
to  show  the  character  of  the  articles  furnished  by  the  defendant,  his 
evidence  was  original  and  competent  proof  thereof,  i  Greenl.  Ev. 
sees.  115,  116;  Earlc  v.  Reed,  10  Met.  387,  391;  Rindge  v.  Breck, 
ante,  43. 

Exceptions  overruled.* 


7.  Liability  upon  Promissory  Note  Given  for  Necessaries. 

SWASEY    V.    THE     ADMINISTRATOR    OF     VANDER- 

HEYDEN. 

10  Johns.  (N.  Y.)  33.  —  1813. 
This  was  an  action  of  assumpsit,  brought  on  the  following  note, 
given  by  the  intestate,  in  his  lifetime.     "February   i8th,   1810,  for 

'  The  infant  is  liable  for  money  paid  at  his  request  to  satisfy  a  debt  which  he 
has  contracted  for  necessaries.     Randall  v.  Sxveet,  i  Den.  460. 


484  INFANCY. 

value  received  for  boarding,  I  promise  to  pay  Ralph  Day,  or  bearer, 
one  hundred  and  fifteen  dollars  by  the  first  day  of  June  next."  'I'he 
defendant  pleaded  the  general  issue,  and  the  infancy  of  the  maker 
of  the  note.  The  plaintiff  replied,  that  the  note  was  given  lo  the 
payee,  for  necessary  boarding,  lodging  and  washing,  furnished  by 
him  to  the  intestate,  in  his  lifetime. 

At  the  trial  it  was  proved  that  the  intestate  was  an  infant  when  he 
gave  the  note.  It  was  contended  by  the  plaintiff's  counsel,  that 
the  note  having  been  negotiated  and  transferred  to  the  plaintiff,  the 
consideration  could  not  be  inquired  into,  or  impeached  on  the  ground 
of  infancy. 

Per  Curiam.  A  negotiable  note  given  by  an  infant,  even  for 
necessaries,  is  void.  This  we  consider  to  be  the  law,  and  it  is  the 
opinion  of  respectable  writers.  Chitty  on  Bills,  20;  i  Campb.  N.  P. 
553,  note.  The  reason  given  is,  that  if  the  note  be  valid,  in  the 
first  instance,  as  a  negotiable  note,  the  consideration  cannot  be 
inquired  into  when  it  is  in  the  hands  of  a  bona  fide  holder,  and  the 
infant  would  thereby  be  precluded  from  questioning  the  considera- 
tion. For  the  same  reasons  it  has  been  held  (i  Term  Rep.  40), 
that  an  infant  cannot  state  an  account,  as  that  would  preclude  him 
from  investigating  the  items.  It  has  also  been  held  (i  Campb. 
N.  P.  552),  that  he  cannot  accept  a  bill  of  exchange  for  necessaries. 
Under  the  general  issue,  the  defendant  is  accordingly  entitled 
to  judgment;  and  the  plaintiff  would  even  have  failed  on  the 
other  ground  taken  at  the  trial,  for  only  part  of  the  note  was  for 
necessaries. 

Judgment  for  the  defendant. 


BRADLEY  v.  PRATT. 

23  Vt.  378.— 1851. 

Assumpsit  upon  a  promissory  note,  dated  October  5,  1846,  and 
made  payable  to  the  plaintiff,  or  order,  on  demand.  Pleas,  the 
general  issue,  and  infancy.  Replication  to  the  plea  of  infancy,  that 
the  note  was  given  for  necessaries;  and  issue  was  joined. 

From  the  evidence  in  the  case  the  court  found  the  following  facts: 
The  defendant,  during  his  minority,  boarded  with  Legrand  Bradley 
twenty  weeks,  at  the  price  of  two  dollars  and  fifty  cents  per  week, 
amounting  in  all  to  the  sum  of  $50.00;  and  the  price  charged  for  the 
board  was  a  reasonable  price.  Legrand  Bradley  was  indebted  to  the 
plaintiff,  and  for  the  convenience  of  the  parties  he  drew  an  order  on 


NON-VOIUABLE   CONTRACTS:   NECESSARIES.  485 

the  defendant,  authorizing  him  to  pay  the  amount  of  the  board  to 
the  plaintiff,  which  order  the  plaintiff  received,  and  the  defendant 
agreed  to  pay  it.  Soon  after  this,  by  consent  of  the  parties,  the 
order  was  surrendered,  and  the  defendant  gave  to  the  plaintiff,  at 
the  request  of  Legrand  Bradley,  the  note  declared  upon.  The  note 
was  given  for  the  exact  amount  of  the  board;  and  the  board  of  the 
defendant  was  the  sole  consideration  of  the  note.  The  defendant, 
at  the  time  of  the  execution  of  the  note,  was  a  minor.  The  note 
was  negotiable,  but  was  never  negotiated. 

Upon  these  facts  the  County  Court  rendered  judgment  for  the 
plaintiff  for  the  amount  of  the  note,  principal  and  interest.  Excep- 
tions for  defendant. 

Redfield,  J.  *  *  *  3.  In  regard  to  the  general  question  of 
the  defendant's  liability,  we  do  not  think  it  easy  to  reconcile  all  the 
cases  to  any  one  rule.  It  was  once  held,  as  clear  law,  that  an  infant 
was  not  liable  upon  a  promissory  note  given  for  necessaries,  or  upon 
an  account  stated.  Trueman  v.  Hurst,  i  T.  R.  40,  decides  that  an 
action  upon  an  account  stated  will  not  lie  against  an  infant,  even  for 
necessaries;  and  the  reporter  understands  this  same  case  as  vir- 
tually holding  that  the  infant  is  liable  on  his  promissory  note  for 
necessaries  (see  the  index),  which  it  seems  to  me  makes  the  decision 
inconsistent  with  itself.  For  what  is  a  promissory  note,  between  the 
original  parties,  but  an  account  stated?  I  should  understand  this 
same  case  as  deciding  that  the  action  will  lie  upon  neither  a  promissory 
note,  nor  an  account  stated,  and  that  the  party  finally  went  upon 
the  common  counts  in  his  declaration.  Swasey  v.  Vander/ieyden,  10 
Johns.  33,  expressly  decides  this.  The  great  weight  of  authority 
goes  in  favor  of  this  proposition,  not  only  the  elementary  writers, 
but  very  many  adjudged  cases.     But  see  2  Dane's  Abr.,  infra. 

But  Judge  Story  in  his  treatise  on  Promissory  Notes,  after  stating 
this  in  general  terms,  raises  a  query  in  a  note,  how  far  this  holds  in 
regard  to  necessaries.  And  by  referring  to  the  books,  which  he 
cites,  it  is  evident  he  considered  the  question  an  open  one.  In 
Com.  Dig.  Tit.  Inf.  B.  5,  it  is  laid  down,  totidetn  verbis.,  that  an 
infant  is  liable  upon  a  single  bill,  or  an  insimul  computassent  — 
which  is,  in  my  judgment,  equivalent  to  saying,  that  he  is  liable 
upon  a  promissory  note.  In  2  Dane's  Abr.  365,  it  is  said,  the 
infant  is  liable  upon  a  security  for  necessaries,  the  consideration  of 
which  may  be  inquired  into:  — hence  by  a  note  before  negotiated, 
or  after  dishonored,  or  not  negotiable, —  citing  Cro.  Jac.  106; 
B.  N.  P.  126;  I  J).  &  E.  40,  supra.  The  same  rule  is  recognized  in 
Stone  V.  Dennison,  13  Pick,  i,  and  expressly  decided,  upon  great 
consideration,  in  Earle  v.  Jieed,  10  Met.  387. 


486  INFANCY. 

We  may  then,  we  think,  regard  the  question  as  still  ///  dubio^  and 
justifying  the  court  in  treating  it  as  still  an  open  question.  And 
being  so,  we  should  desire  to  put  it  upon  safe  and  consistent  ground. 
We  are  led,  then,  to  inquire,  what  is  the  true  principle  lying  at  the 
foundation  of  all  these  inquiries. 

We  think  it  is,  that  the  infant  should  be  enabled  to  pledge  his 
credit  for  necessaries  to  any  extent,  consistent  with  his  perfect 
safety.  All  the  cases  and  all  the  elementary  writers  expressly  hold 
that  it  is  for  the  benefit  of  the  infant,  that  he  should  be  able  to  con- 
tract for  necessaries;  and  we  see  no  reason,  why  he  may  not  be 
allowed  to  contract  in  the  ordinary  modes  of  contracting,  so  far  as 
his  perfect  safety  is  maintained  always.  He  must  of  necessity  make 
many  express  contracts  in  regard  to  necessaries,  where  he  provides 
for  himself.  He  must  designate  the  kind  of  supply,  the  quantity, 
and  will  of  necessity  stipulate,  generally,  as  to  the  price  and  mode 
of  payment,  and  his  admissions  and  declarations  may  always  be 
shown,  as  well  in  regard  to  contracts,  as  torts,  I  take  it.  It  was 
certainly  so  held,  many  years  since,  in  the  county  of  Bennington,  bj 
this  court,  ///  audivi.  If,  then,  these  admissions  and  stipulations  are 
to  go  in  as  evidence  before  the  triers  of  facts,  although  not  in  any 
sense  conclusive,  I  do  not  well  comprehend  why,  upon  principles, 
any  express  contract  may  not  be  said  to  be  binding  upon  him,  when 
it  is  shown  to  have  been  given  for  necessaries  and  the  price  to  have 
been  reasonable,  if  it  be  one  where  the  consideration  may  be  in- 
quired into.  Comyn  says,  ubi  supra,  "  so  a  contract  to  pay  so  much 
per  annum  for  his  diet  and  schooling  is  good," — citing  i  Roll.  729 
b.  35.  And  if  so,  why  not  upon  a  promissory  note,  or  account 
stated?     I  see  no  good  reason. 

And  if  it  were  not  for  maintaining  the  unimpeachable  character  of 
negotiable  paper,  in  regard  to  consideration,  so  that  all  might  safely 
take  it,  I  do  not  see  why  the  rights  of  infants,  in  regard  to  accept- 
ances and  notes  negotiated,  might  not  be  saved  by  allowing  them, 
as  an  exception  to  the  general  rule,  to  show  their  infancy,  and  then 
for  the  plaintiff  to  meet  it  by  proving  the  contract  to  have  been 
given  for  necessaries.  But  this  has  not  been  done,  and  probably 
could  not  be  done,  without  too  great  an  infringement  of  the  rules 
of  law  in  regard  to  negotiable  paper,  while  current.  And  as  con- 
fessedly the  infant  may  prima  /««>  avoid  his  note,  or  bill,  by  merely 
showing  the  fact  of  his  infancy  at  the  time  of  making  the  contract, 
what  is  the  impropriety  in  allowing  the  plaintiff  to  recover  in  all  such 
cases,  by  showing  the  consideration  to  be  for  necessaries. 

But  so  long  as  the  contract  remains  in  a  form  to  be  open  to  all 
defences,  we  see  no  reason  whatever  why  the  party  should  be  driven 


NON-VOIDABLE   CONTRACTS:    NECESSARIES.  487 

out  of  court  upon  mere  form.  The  case  of  Conn  v.  Coburn^  7  N.  H. 
368,  where  it  was  held  that  an  infant  was  Uable  to  one  who  signed 
a  note  with  him,  as  surety,  given  for  necessaries,  who  had  paid  the 
money,  goes  to  that  extent,  we  think.  Here  the  plaintiff  has,  at 
the  defendant's  request,  paid  Legrand  Bradley  for  necessaries  for  the 
defendant  and  agreed  to  look  solely  to  the  defendant.  And  if  in  such 
a  case,  the  law  implies  a  promise  on  the  part  of  the  infant  to  indem- 
nify his  surety,  and  the  cause  of  action  arises,  when  the  surety  pays 
the  money,  how  does  the  casediffer  from  the  present,  except  that  the 
defendant  has  executed  a  promissory  note  to  his  surety?  Upon 
the  view  taken  of  this  case  in  the  County  Court, it  seems  to  us  identi- 
cal with  that  of  Conn  v.  Cobur7i.  We  see  no  good  reason  to  distin- 
guish between  this  case  and  that  of  a  promissory  note  given  to  the 
party  providing  the  necessaries.  It  is  equally  open  to  examination 
as  to  the  consideration. 

The  chief  reason,  perhaps,  why  an  infant  is  not  liable  at  law,  and 
is  liable  in  equity,  for  money  borrowed,  and  which  is  actually  ex- 
pended for  necessaries,  is  the  want  of  privity  between  the  lender 
and  the  one  who  furnishes  the  necessaries.  If  one  buys  necessaries 
for  an  infant  with  money,  or  if,  at  the  request  of  the  infant,  he  pay 
for  those  already  furnished,  the  infant  is  liable,  I  apprehend.  That 
privity  is  here  established.  It  is  difficult  to  perceive,  why,  if  an 
infant  is  liable  on  a  single  bill,  which  is  a  bond  without  penalty, 
given  for  necessaries,  he  should  not  be  equally  so  on  a  promissory 
note,  or  an  account  stated.     *     *     * 

Judgment  affirmed.' 
. . — ^ 1 

'  "The  views  of  this  subject  which  strike  us  as  the  most  reasonable  may  be 
stated  as  follows:  If  the  payee  of  a  note  made  by  an  infant  were  to  sue  him 
upon  it  as  maker,  and  he  pleaded  infancy,  the  payee  might  reply  that  it  was 
executed  for  necessaries,  and  that  such  necessaries  were  reasonably  worth  the 
amount  specified  in  the  note.  The  burden  of  proof  would  rest  upon  the  plain- 
tiff to  show  that  the  consideration  was  necessaries,  and  also  to  show  their  value; 
and  no  more  than  the  value  proved  could  be  recovered.  And  this  view  would 
apply  whether  the  note  were  in  form  negotiable  or  not.  If  the  indorsee  of  the 
payee  of  such  a  note  were  to  sue  the  indorser,  the  latter  would,  of  course,  be 
bound  to  him  whether  the  maker  were  an  infant  or  not,  for  by  indorsement  he 
warrants  the  capacity  of  prior  parties  and  the  entire  validity  of  the  paper.  And 
were  the  indorsee  to  sue  the  maker,  and  he  were  to  plead  infancy,  there  seems 
to  be  no  good  reason  why  it  might  not  be  replied  that  the  note  was  given  for 
necessaries,  and  that  they  were  worth  the  amount  specified;  and  that  the  in- 
dorsee, like  the  payee,  should  be  entitled  to  recover  upon  proving  the  considera- 
tion to  have  been  necessaries,  and  upon  showing  their  value.  The  distinction 
taken  in  some  cases,  that  the  payee  may  sue  the  infant  as  maker,  but  that  an 
indorsee  cannot  do  so,  seems  extremely  technical  and  unreasonable.  If  not  ab- 
solutely  void  as  to    the    payee,  we  cannot  perceive  why  it  should    be    so   held 


488  INFANCY. 

Torts  by  Infants. 

I.   In  General. 

HUCHTING  V.  ENGEL. 

17  Wis.  230. — 1863. 

HucHTiNG  brought  an  action  before  a  justice  of  the  peace  against 
Moritz  Engel,  for  breaking  and  entering  the  plaintiff's  premises,  and 
breaking  down  and  destroying  his  shrubbery  and  flowers  therein 
standing  and  growing.  The  plaintiff  proved  the  alleged  trespass 
and  damages;  and  on  the  part  of  the  defence  it  was  shown  that  the 
defendant,  at  the  time  of  the  trespass,  was  but  little  more  than  six 
years  old.  A  motion  to  dismiss  the  action  on  the  ground  that  the 
defendant  was  "  of  such  tender  years  that  a  suit  at  law  could  not  b€ 
maintained  against  him,"  was  overruled. 

The  justice  rendered  judgment  against  the  defendant  for  %2,.oo 
damages,  with  costs.  The  Circuit  Court,  on  appeal,  reversed  the 
judgment;  and  the  plaintiff  sued  out  his  writ  of  error. 

Dixon,  C.  J.  "  Infants  are  liable  in  actions  arising  ex  delicto, 
whether  founded  on  positive  wrongs,  as  trespass  or  assault,  or  con- 
structive torts  or  frauds."     2  Kent's  Com.  241. 

"  Where  the  minor  has  committed  a  tort  with  force,  he  is  liable  at 
any  age;  for  in  case  of  civil  injuries  with  force,  the  intention  is  not 
regarded;  for  in  such  a  case  a  lunatic  is  as  liable  to  compensate  in 
damages  as  a  man  in  his  right  mind."     Reeve's  Dom.  Rel.  258. 

"The  privilege  of  infancy  is  purely  protective,  and  infants  are 
liable  to  actions  for  wrong  done  by  them;  as  to  an  action  for 
slander,  an  action  of  trover  for  property  embezzled,   or  an  action 


as  to  an  indorsee,  who,  while  he  could  not  stand  upon  a  better  footing  than  the 
indorser  as  against  the  infant,  certainly  should  not  be  placed  upon  a  worse;  for 
the  payee  must  generally  have  a  better  opportunity  to  know  the  fact  of  infancy 
than  he.  Nor  can  we  see  that  holding  the  original  consideration  to  be  open  to 
proof,  upon  infancy  being  shown,  would  damage  the  character  of  a  negotiable 
note  more  than  declaring  it  utterly  void. 

Justice  seems  to  require  that  the  mere  negotiable  form  of  the  paper  should  not 
destroy  all  validity;  and  although  it  could  not  be  said  to  be  negotiable  in  the 
full  sense  of  that  term — protection  to  the  infant — which  is  the  sole  object  of  the 
law — requires  no  more  than  that  his  infancy  should  shield  him  from  all  liability 
beyond  the  actual  value  of  the  necessaries  furnished,  and  justice  to  the  holder 
demands  that  at  least  that  should  be  given  him.  The  Scotch  law  is  entirely  in 
harmony  with  these  views."  —  Daniel,  Negotiable  Instruments,  §  226,  4th  ed. 
(^1891),  with  authorities  there  cited. 


TORTS   BY    INFANTS.  489 

grounded  on  fraud  committed."  Macpherson  on  Infants,  481 
(41  Law  Lib.  305). 

"Infants  are  liable  for  torts  and  injuries  of  a  private  nature;  as 
disseizins,  trespass,  slander,  assault,  etc."    Bingham  on  Infancy,  no. 

"  All  the  cases  agree  that  trespass  lies  against  an  infant."  Hart- 
field  v.  Roper,  21  Wend.  620. 

This  is  the  language  of  a  few  of  the  many  writers  and  courts  who 
have  spoken  upon  the  subject.  All  agree,  and  all  are  supported  by 
the  authorities,  with  no  single  adjudged  case  to  the  contrary. 
Jemiings  v.  Rundall,  8  Term.  335;  Sikes  v.  Johnson,  16  Mass.  389; 
Homer  \.  Thwing,  3  Pick.  492;  Campbell  v.  Stakes,  2  Wend.  137;  Bul- 
lock V.  Babcock,  3  Wend.  391;  Neal  v.  Gillett,  23  Conn.  437;  Hum- 
phrey V.  Douglass,  10  Vt.  71.  In  the  latter  case  the  minor  was  held 
answerable  for  a  trespass  committed  by  him,  although  he  acted  by 
command  of  his  father. 

The  authorities  cited  by  the  counsel  for  the  defendant  in  error 
have  no  bearing  upon  the  question.  They  relate  to  the  criminal 
responsibility  of  infants;  to  the  question  of  negligence  on  their 
part,  as  whether  it  can  be  imputed  to  them  so  as  to  defeat  actions 
brought  by  them  to  recover  damages  for  personal  injuries  sustained 
in  part  in  consequence  of  the  negligence  or  unskilfulness  of  others; 
and  to  the  liability  of  parents  and  guardians  for  wrongs  committed 
by  infants  under  their  charge,  by  reason  of  the  neglect  or  want  of 
proper  care  of  such  parents  or  guardians.  The  case  at  bar  is  none 
of  these.  The  defendant  is  not  prosecuted  criminally,  the  action  is 
not  by  him  to  recover  damages  for  personal  injury  occasioned  by  the 
joint  negligence  of  himself  or  his  parents,  and  another;  nor  is  the 
liability  of  the  parents  involved.  The  suit  is  brought  to  recover 
damages  for  a  trespass  committed  by  him;  not  vindictive  or  puni- 
tory damages,  but  compensation;  and  for  that  he  is  clearly  liable. 
If  damages  by  way  of  punishment  were  demanded,  undoubtedly  his 
extreme  youth  and  consequent  want  of  discretion  would  be  a  good 
answer. 

Judgment  of  the  circuit  reversed,  and  that  of  the  justice  of  the 
peace  affirmed.' 

'  A  boy  twelve  years  old  was  held  responsible  for  battery  in  Vosburg  v.  Put- 
ney, 80  Wis.  523;  a  boy  thirteen  years  old  was  held  responsible  for  negligence  in 
Neal  V.  Gillett,  23  Conn.  437. 


490  INFANCY. 

2,  When  Connected  with  Contract. 
EATON  V.  HILL. 

50  N.  H.  235—1870. 

Case,  by  Eaton  &  Whittemore  against  Charles  E.  Hill  and  Dana 
Cummings. 

Bellows,  C.  J.  The  substance  of  the  declaration  is,  that  the 
defendant  having  hired  the  plaintiff's  horse  for  a  short  journey, 
drove  him  so  carelessly  and  immoderately  as  to  cause  his  death. 
No  promise  is  alleged  to  drive  him  moderately  and  with  due  care, 
but  the  plaintiffs  put  their  case  upon  the  ground  of  a  breach  of  duty 
by  the  defendant,  and  the  doing  of  a  tortious  act;  and  the  question 
is,  whether  a  minor  is  liable  in  such  case. 

On  this  point  the  authorities  are  not  altogether  harmonious.  In 
Fitts  V.  Hall,  9  N.  H.  441,  the  cases  were  examined,  and  this  princi- 
ple deduced  from  them  in  the  opinion  by  Parker,  C.  J.,  that  "  if  the 
tort  or  fraud  of  an  infant  arises  from  a  breach  of  contract,  although 
there  may  have  been  false  representations  or  concealment  respect- 
ing the  subject-matter  of  it,  the  infant  cannot  be  charged  for  this 
breach  of  his  promise  or  contract  by  a  change  of  the  form  of  action. 
But  if  the  tort  is  subsequent  to  the  contract,  and  not  a  mere  breack 
of  it,  but  a  distinct,  willful,  and  positive  wrong  of  itself,  then, 
although  it  may  be  connected  with  a  contract,  the  infant  is  liable." 
In  that  case  it  was  decided  that  an  infant  was  liable  for  deceit  in 
falsely  representing  himself  to  be  of  age,  and  thereby  inducing  the 
plaintiff  to  sell  him  goods  on  credit,  and  afterwards  avoiding  his 
promise  to  pay  by  pleading  infancy.  The  general  doctrine  of  Fitts 
V.  Hall  is  fully  approved  in  Prescott  v.  Norris,  32  N.  H.  103,  per 
Perley,  C.  J.,  and  is  supported  by  the  reasoning  of  the  court  in 
Woodman  v.  Hubbard,  25  N.  H.  67,  73.  Indeed,  it  would  seem  to  be 
too  clear  to  admit  of  controversy,  that  an  infant  bailee  must  be  liable 
for  the  injury  or  destruction  of  the  thing  bailed,  by  his  positive, 
willful,  and  tortious  act,  even  although  it  was  part  of  the  contract, 
express  or  implied,  that  the  goods  should  be  safely  returned.  As  if, 
in  the  case  of  the  bailment  of  a  horse,  he  willfully  beat  him  to  death, 
or  willfully  drove  him  so  immoderately  as  to  endanger  his  life,  and 
knowing  that  he  did  so,  and  actually  causing  his  death.  Such  acts, 
indeed,  would  be  wholly  unauthorized  by  the  contract  of  bailment; 
and  in  respect  to  them  the  infant  would  stand  as  if  no  such  contract 
existed.  So  that  an  action  of  trover  might  be  maintained  against 
him  on   the  ground    that    the    bailment   was   thereby  determined. 


TORTS    BY    INFANTS.  49! 

Wentworth  v.  McDuffee,  48  N.  H.  402.  It  does  not  follow  from  this 
that  for  every  case  of  immoderate  driving  for  which  an  adult  would 
be  liable,  an  infant  bailee  would  also  be  liable.  The  bailee  in  these 
cases  is  understood  to  stipulate  for  ordinary  care  and  skill  in  the  use 
of  an  animal  so  bailed,  and  for  any  injury  caused  by  the  want  of  it, 
he  is  liable.  In  the  case  of  the  infant,  however,  his  promise  to  use 
due  care  and  skill  does  not  bind  him,  but  he  is  still  liable  for  posi- 
tive tortious  acts,  willfully  committed,  whereby  the  thing  bailed  is 
injured  or  destroyed.  If  through  want  of  skill  and  experience,  the 
animal  is  unintentionally  injured  by  the  infant,  it  might  well  be  con- 
tended that  he  would  not  be  liable  because  he  has  made  no  binding 
promise  to  exercise  such  skill.  There  are  cases  which  hold  that  an 
infant,  who  hires  a  horse  for  a  journey,  is  not  liable  for  an  injury 
caused  by  immoderate  driving.  The  case  of  'yennings  v.  Randall^ 
8  T.  R.  335,  is  of  this  character,  and  the  court  held  that  the  cause 
of  action  arose  out  of  a  contract,  and  that  the  infant  could  not  be 
made  liable  by  changing  the  form  of  action  to  tort.  This  case  is 
criticised  and  doubted  by  Parker,  C.  J.,  in  Fitts  v.  Hall^  upon  the 
ground  that  Lord  Kenyon  seemed  to  regard  the  injur)'  as  resulting 
from  an  accident,  without  adverting  to  that  part  of  the  declaration 
which  might,  with  proper  proof,  have  made  a  case  of  conversion. 
It  is  very  true  that  Lord  Kenyon,  in  his  opinion,  assumes  that  the 
injury  to  the  horse  was  accidental,  although  the  declaration  alleges 
that  the  defendant  wrongfully  drove  the  mare  immoderately,  and  so 
caused  the  injury.  The  other  judges  also  assume  that  the  cause  of 
action  was  substantially  a  breach  of  contract;  and  if  this  were  so, 
the  decision  was  clearly  right,  and  would  not  conflict  with  the  doc- 
trine of  Fitts  v.  Hall. 

There  are  other  authorities  that  accord  with  J^ennings  v.  Rundall. 
See  I  Am.  Lead.  Cas.  (4th  ed.),  261-263,  ^"^  cases  cited.  \v\.  Schenk 
y.  Strong,  i  Southard,  87,  infancy  was  held  to  be  a  good  bar  to  an 
action  on  the  "case  alleging  that  a  chair  was  lent  to  defendant  for  a 
particular  journey,  to  be  used  carefully  and  returned  at  a  specified 
time,  yet  that  he  went  on  a  different  journey,  carelessly  broke  it, 
and  did  not  return  it  at  the  time  agreed,  thereby  violating  his 
engagement  in  every  particular.  In  all  respects  except  the  going  a 
different  journey,  this  has  the  character  of  a  mere  breach  of 
contract,  for  which  the  infant  cannot  be  made  liable  by  changing  the 
form  of  the  action.  The  using  the  chair  for  a  different  journey  was 
not  a  mere  breach  of  contract,  but  a  positive  tortious  act  for  which 
the  infant  was  liable  in  some  proper  form  of  action.  Hotner  v. 
Thwing,  3  Pick.  492;  Towne  and  al.  v.  Wiley,  23  Vt.  353.  In  such 
cases  the  infant  stands  like  an  adult,  and  is  liable  on  the  ground 


492  INFANCY. 

that  using  the  thing  bailed  for  another  purpose  is  a  cf)nversion.  In 
such  case  an  adult  is  clearly  liable,  IVoodman  v.  Hubbard,  25  N.  H. 
72,  where  it  was  held  by  Perley,  J.,  that  driving  a  horse  to  a  place 
beyond  the  limits  for  which  he  was  hired  was  a  wrongful  invasion  of 
the  plaintiff's  right  of  property,  and  not  a  mere  breach  of  contract; 
and  the  case,  Homer  v.  T/mnng,  is  cited  and  approved.  The  judge 
says  that  this  case  and  Vassew.  Smith,  6  Cranch,  231;  Campbell  v. 
Stakes,  2  Wend.  137,  and  Mills  v.  Graham,  i  Bos.  and  P.  New,  140, 
are  strong  authorities  to  the  point  that  an  infant  who  receives  goods 
on  a  contract,  and  disposes  of  the  property  without  right,  is  liable 
in  trover. 

In  Mills  V.  Graham,  i  B.  and  P.  New,  140,  it  was  held  that  an 
infant  who  has  received  of  the  plaintiff  skins  to  be  dressed  and 
returned,  was  liable  in  trover  for  refusing  to  return  them  on  demand. 
In  Parsons  on  Con.  264,  it  is  laid  down  that  for  a  tort  or  fraud  which 
is  a  mere  breach  of  his  contract,  an  infant  is  not  liable;  but  where 
the  tort,  though  connected  by  circumstances  with  the  contract,  is 
still  distinguishable  from  it,  there  he  is  liable, —  as,  if  he  hires  a 
horse  for  an  unnecessary  ride,  he  is  not  liable  for  the  hire;  but  if,  in 
the  course  of  the  ride,  he  willfully  abuses  and  injures  the  horse,  he  is 
liable  for  the  tort;  and  if  he  should  sell  the  horse,  trover  would  lie. 
In  2  Greenl.  Ev.  sec.  368,  it  is  laid  down,  that  an  infant  bailee  of  a 
horse  is  not  liable  for  treating  him  negligently  or  riding  him  immode- 
rately, but  is  liable  if  he  goes  to  a  different  place,  or  beats  the  ani- 
mal to  death.  In  Campbell  v.  Stakes,  2  Wend,  37,  it  was  held  that  if 
an  infant  who  has  hired  a  horse,  willfully  and  intentionally  injures 
the  animal,  trespass  will  lie  against  him,  or  if  he  does  any  willful  or 
positive  act  which  amounts  to  a  disaffirmance  of  the  contract;  but 
if  he  neglect  to  use  him  with  ordinary  care,  or  to  return  him  at  the 
time  agreed  on,  he  is  not  liable.  This  case  is  cited  with  approba- 
tion in  Fitts  V.  Hall.  Campbell  v.  Stakes  was  an  action  of  trespass; 
and  the  court  held  that  infancy,  with  an  averment  that  the  injury 
occurred  in  driving  the  horse  through  the  unskilfulness  and  want  of 
knowledge,  discretion,  and  judgment  of  the  defendant,  was  a  good 
plea. 

In  Towne  a7id  al.  v.  Wiley,  23  Vt.  359,  the  doctrine  is  said  to  be 
that  infants  are  held  liable  for  positive  and  substantial  torts,  but  not 
for  violations  of  contracts  merely,  although  by  the  rules  of  pleading 
a  plaintiff  might  declare  in  tort  or  contract  at  his  election;  and  in 
this  case  Judge  Redfield  endorses  the  doctrine  of  Fitts  v.  Hall. 

We  think,  then,  that  the  doctrine  is  well  established,  that  an  infant 
bailee  of  a  horse  is  liable  for  any  positive  and  willful  tort  done  to  the 
animal  distinct  from  a  mere  breach  of  contract, —  as,  by  driving  to 


TORTS    BY    INFANTS.  493 

a  place  other  than  the  one  for  which  he  is  hired,  refusing  to  return 
him  on  demand  after  the  time  has  expired,  willfully  beating  him  to 
death,  and  the  like;  so,  if  he  willfully  and  intentionally  drive  him  at 
such  an  immoderate  speed  as  to  seriously  endanger  his  life,  knowing 
that  it  will  do  so.  In  We?itworth  v.  McDuffie,  48  N.  H.  402,  such 
driving  by  an  adult  was  held  to  be  a  conversion ;  and,  for  aught  we 
can  see,  the  same  principle  would  apply  to  the  case  of  an  infant. 

In  all  these  cases  it  may  be  urged  that  the  law  implies  a  promise, 
on  the  part  of  the  bailee,  to  drive  the  horse  only  to  the  appointed 
place,  to  return  him  at  the  end  of  the  journey,  not  to  abuse  him  or 
drive  him  immoderately,  and  that  a  failure  in  either  respect  is  merely 
a  breach  of  contract.  So  it  might  be  said  that  the  law  would 
raise  a  promise  not  to  kill  him;  and  yet  no  one  would  fail  to  see 
that  to  kill  him  willfully  would  be  a  positive  act  of  trespass,  for 
which  an  infant  should  be  liable  the  same  as  if  there  were  no  con- 
tract. 

Between  acts  that  are  to  be  regarded  as  mere  breaches  of  the  con- 
tract of  bailment  and  positive  and  willful  torts,  a  line  must  be  drawn 
somewhere;  and  although  it  must  often  be  difficult  to  discriminate 
between  them,  we  think  it  is  safe  to  hold  that  the  acts  we  have 
named,  and  others  of  a  like  character,  are  positive  torts-  for  which 
an  infant  is  liable,  and  not  mere  breaches  of  contract.  When  the 
infant  stipulates  for  ordinary  skill  and  care  in  the  use  of  the  thing 
bailed,  but  fails  for  want  of  skill  and  experience,  and  not  from  any 
wrongful  intent,  it  is  in  accordance  with  the  policy  of  the  law  that 
his  privilege,  based  upon  his  want  of  capacity  to  make  and  fully 
understand  such  contracts,  should  shield  him.  A  failure  in  such  a 
case,  from  mere  want  of  ordinary  care  or  skill,  might  well  be 
regarded  as,  in  substance,  a  breach  of  contract  for  which  the  infant 
is  not  liable,  even  although  in  ordinary  cases  an  action  ex  delicto 
might  be  sustained.  But  when,  on  the  other  hand,  the  infant 
wholly  departs  from  his  character  of  bailee,  and  by  some  positive 
act  willfully  destroys  or  injures  the  thing  bailed,  the  act  is  in  its 
nature  essentially  a  tort,  the  same  as  if  there  had  been  no  bail- 
ment, even  if  assumpsit  might  be  maintained  in  the  case  of  an  adult, 
or  a  promise  to  return  the  thing  safely.' 

In  the  case  before  us,  the  declaration  embraces  a  charge  of  immode- 
rate driving  whereby  the  plaintiff's  horse  was  killed,  and,  as  we 
have  seen,  the  proof  might  be  such,  under  a  proper  declaration,  as 
to  charge  the  infant;  and  it  might  be  such  as  to  show  that  the 
immoderate  driving  was  unintentional  and  wholly  owing  to  want  of 
experience  and  discretion,  in  which  case  he  would  not  be  liable. 
The  question  then  is,  whether  an  action  on   the  case,  as  this  is,  can 

'  Accord,  Churchill  v.    White,  58  Neb.  22. 


494  INFANCY. 

be  maintained  for  any  cause  of  action  that  may  be  proved  under  this 
declaration.     If  it  can  be,  the  demurrer  must  be  sustained. 

In  some  cases  it  is  held  that  by  a  positive  and  willful  tort  the  bail- 
ment is  determined,  and  the  remedy  must  be  by  action  of  trespass 
or  trover,  and  that  case  will  not  lie.  Such  is  the  doctrine  of  Camp- 
hell  V.  Stakes,  before  cited;  and  the  court  put  it  upon  the  ground 
that  the  act^n  on  the  case  necessarily  supposes  the  defendant  to 
have  a  right  to  the  possession  of  the  property,  under  the  contract  of 
hiring,  at  the  time  the  injury  was  committed,  and  that  by  declaring 
in  case  the  plaintiff  affirms  the  existence  of  such  contract,  and  the 
plea  of  infancy  would  be  a  good  defence  to  such  action  —  citing 
y^eniiings  v.  Rundall.  8  T.  R.  335,  and  Green  v.  Greenbafjk,  2  Marshall, 
485,  4  Eng.  Com.  Law,  375. 

To  the  correctness  of  this  view  we  are  unable  to  subscribe.  If  a 
wrong  has  been  done  to  the  property  bailed  of  such  a  nature  that  an 
action  on  the  case  would  ordinarily  be  an  appropriate  remedy,  and 
at  the  same  time  an  infant  would  be  liable  for  it  in  any  form  of 
action,  we  perceive  no  reason  for  holding  that  case  would  not  lie 
against  him. 

If  the  declaration  sets  out  a  cause  of  action  which  is  good  against 
an  infant  bailee,  by  reason  of  its  being  a  positive  and  willful  wrong 
and  not  a  mere  breach  of  contract,  and  at  the  same  time,  according 
to  the  rules  of  pleading,  an  action  on  the  case  appears  to  be  the 
appropriate  remedy,  we  think  it  clear  that  such  an  action  would  be 
maintained. 

If  it  were  necessary  that  the  bailment  should  be  determined  in 
order  to  maintain  the  action,  the  facts  stated  would  show  it  the  same 
as  it  would  be  shown  by  stating  a  conversion  in  trover. 

In  many  cases  trespass  or  trover  will  lie  for  injuries  done  by 
bailees,  and  to  maintain  those  suits  the  bailment  must  have  been 
determined;  and  this  is  shown  by  proof  of  tortious  acts  inconsistent 
with  the  bailment  —  and  from  the  bringing  of  these  suits  it  may 
fairly  be  inferred  that  the  plaintiff  elects  to  consider  the  bailment  at 
an  end.  In  bringing  an  action  on  the  case,  setting  out  such  a  posi- 
tive and  willful  tort  as  is  wholly  inconsistent  with  the  contract  of 
bailment,  and  amounts  to  a  disaffirmance  of  it,  the  same  inference 
may  be  made.  In  all  these  cases  the  actions  are  based  upon  acts 
which  disaffirm  the  contract  of  bailment,  and  the  bringing  the  suits 
is  an  election  by  the  bailor  to  consider  the  bailment  terminated; 
and  this  applies  to  an  action  on  the  case  for  a  tort  which  disaffirms 
the  contract,  the  same  as  to  trespass  or  trover;  the  latter  is,  indeed, 
but  a  subdivision  of  actions  upon  the  case. 

We  are  brought,  then,  to  the  conclusion,  that  case  will  lie  against 


TORTS    BY    INFANTS.  495 

an  infant  bailee  for  a  positive  and  willful  tort  of  such  a  nature  that, 
upon  general  principles  of  pleading,  case  is  a  proper  remedy. 

Whether  such  a  cause  of  action  exists  here  remains  to  be  seen. 
The  declaration  does  not  state  such  a  cause.  It  states  a  bailment 
of  the  horse  to  defendant,  and  that  he  drove  him  so  carelessly  and 
immoderately  as  to  cause  his  death.  This,  we  think,  does  not  go 
far  enough  to  charge  an  infant  bailee.  It,  indeed,  goes  no  further 
than  to  charge  him  with  what  is  in  substance  a  breach  of  contract, 
and  to  that  the  plea  of  infancy  is  a  good  defence.  In  this  respect  it 
comes  within  the  principle  of  'yennings  v.  Randall^  8  T.  R.  335, 
before  cited.  It  is  true  that  the  immoderate  driving  may  have  been 
a  positive  and  willful  act  so  as  to  make  the  infant  liable;  but  we 
think  that  unless  it  is  so  stated,  the  plea  of  infancy  is  a  good 
defence. 

If  the  acts  will  justify  it,  the  plaintiffs  may  have  leave  to  amend 
their  declaration  upon  terms  which  will  be  the  costs  of  demurrer. 
Whether  the  facts  will  justify  such  an  amendment  of  the  count  in 
case  as  will  support  it,  remains  to  be  seen.  That  a  count  in  case 
might,  under  some  circumstances,  be  the  appropriate  remedy  may 
be  inferred  from  the  case  of  Gilson  v.  Fisk,  8  N.  H.  404,  and  the 
cases  cited,  as  well  as  the  case  of  Waterman  v.  Hall^  17  Vt.  128, 
and  numerous  cases  where  it  is  held  that  a  party  may,  at  his  elec- 
tion, sue  in  trespass,  or  waive  the  trespass  and  sue  in  case. 

Under  some  circumstances  trover  would  lie  as  we  have  seen,  and 
as  case  and  trover  may  be  joined,  there  would  seem  to  be  no  objec- 
tion to  adding  a  count  in  trover  by  way  of  amendment  if  the  identity 
of  the  cause  of  action  would  be  preserved. 

As  it  now  stands,  the  conclusion  is,  the  demurrer  must  be  over- 
ruled.' 


RICE  V.  BOYER. 


108  Ind.  472. — 1886. 

Elliott,  C.  J.  It  is  alleged  in  the  complaint  of  the  appellant, 
that  the  appellee,  with  intent  to  defraud  the  appellant,  falsely  and 
fraudulently  represented  that  he  was  twenty-one  years  of  age;  that, 
relying  on  this  representation,  the  appellant  was  induced  to  sell  and 
deliver  to  the  appellee,  on  one  years'  credit,  a  buggy  and  a  set  of 
harness;  that  the  appellee,  in  payment  for  the  property,  delivered 
to  appellant  a  buggy,  and  executed  to  him  promissory  note,  payable 
one  year  after  date,  and  also  executed  a  chattel  mortgage  to  secure  the 

'  Contra,  Penrose  v.  Curren,  3  Rawle  (Pa.),  35L.  In  Loxvery  v.  Gate,  loS  Tenn. 
54,  an  infant  performing  a  contract  of  threshing  was  not  held  liable  for  negli- 
gently setting  tire  to  the  barn  of  the  other  partv. 


496  INFANXV. 

payment  of  the  note;  that  the  appellee's  representation  was  untrue; 
that  he  had  not  attained  the  age  of  twenty-one  years;  that  on 
account  of  appellee's  non-age  the  note  cannot  be  enforced;  that  the 
appellee  avoided  his  note  and  mortgage  by  a  sale  of  the  mortgaged 
property,  "  and  repudiates  and  refuses  to  be  bound  by  his  contract 
in  reference  thereto;  "  that  the  appellant  brings  into  court  the  note 
and  mortgage  executed  to  him,  and  tenders  them  to  the  appellee. 
Prayer  for  judgment  for  the  value  of  the  property  delivered  to 
appellee. 

To  this  complaint  a  demurrer  was  sustained,  and  error  is  assigned 
on  that  ruling.     *     *     * 

The  material  and  controlling  question  in  the  case  is  this:  Will 
an  action  to  recover  the  actual  loss  sustained  by  a  plaintiff  lie 
against  an  infant  who  has  obtained  property  on  the  faith  of  a  false 
and  fraudulent  representation  that  he  is  of  full  age? 

Infants  are  in  many  cases  liable  for  torts  committed  by  them,  but 
they  are  not  liable  where  the  wrong  is  connected  with  a  contract, 
and  the  result  of  the  judgment  is  to  indirectly  enforce  the  contract. 
Judge  Cooley  says:  "If  the  wrong  grows  out  of  contract  relations, 
and  the  real  injury  consists  in  the  non-performance  of  the  contract 
into  which  the  party  wronged  has  entered  with  an  infant,  the  law 
will  not  permit  the  former  to  enforce  the  contract  indirectly  by 
counting  on  the  infant's  neglect  to  perform  it,  or  omission  of  duty 
under  it  as  a  tort."  Cooley  Torts,  106.  In  another  place  the  same 
author  says:  "  So,  if  an  infant  effects  a  sale  by  means  of  deception 
and  fraud,  his  infancy  protects  him."  Cooley  Torts,  107.  Addison, 
following  the  English  cases,  says:  An  infant  is  not  liable  "  if  the 
cause  of  action  is  grounded  on  matter  of  contract  with  the  infant, 
and  constitutes  a  breach  of  contract  as  well  as  a  tort."  Addison, 
Torts,  sec.  1314. 

Upon  this  principle  it  has  been  held  in  some  of  the  cases  that  an 
infant  is  not  liable  for  the  value  of  property  obtained  by  means  of 
false  representations.  Hewlett  v .  Hastvell,  4  Campb.  118;  Green  v. 
Greenbank^  2  Marsh,  485;  Vasse  v.  Smith,  6  Cranch,  226  (i  Am.  Lead. 
Cases,  237);  Studwellv.  Shapter,  54  N.  Y.  249. 

It  is  also  generally  held  that  an  infant  is  not  estopped  by  a  false 
representation  as  to  his  age,  but  this  doctrine  rests  upon  the  principle 
that  one  under  the  disability  of  coverture  or  infancy  has  no  power 
to  remove  the  disability  by  a  representation.  Carpenter  v.  Carpenter^ 
45  Ind.  142;  Sims  v.  Everhardt,  102  U.  S.  300;  Whitcomb  v.  Jodyn, 
51  Vt.  79  (31  Am.  R.  678);  Conrad  V.  Lane,  26  Minn.  389  (37  Am.  R. 
412);  Wielandv.  Kobick,  no  111.  16  (51  Am.  R.  676);  Ward  v .  Berk- 
shire Life  Lns.  Co.,  ante,  p.  301. 


TORTS   BY    INFANTS.  49/ 

It  is  evident  from  this  brief  reference  to  the  authorities,  that  it  is 
not  easy  to  extract  a  principle  that  will  supply  satisfactory  reasons 
for  the  solution  of  the  difficulty  here  presented.  It  is  to  be  expected 
that  we  should  find,  as  we  do,  stubborn  conflict  in  the  authorities  as 
to  the  question  here  directly  presented,  namely,  whether  an  action 
will  lie  against  an  infant  for  falsely  representing  himself  to  be  of 
full  age.  Johnson  v.  Pie,  i  Lev.  169;  Price  v.  Hetvitt,  8  Exch.  146; 
Liverpool,  etc.,  Ass' n  v.  FairJmrst,  9  Exch.  422;  Brown  v.  Dunham, 
I  Root,  272;  Curtin  v.  Patton,  11  Serg.  &  R.  305;  Homer  v.  Thwing, 
3  Pick.  492;  Word\.  Vance,  i  N.  &  McC.  197;  Fitts  v.  Hail,  9  N.  H. 
441;  Norris  v.   Vance,  3  Rich.  164;   Gilson  v.  Spear,  38  Vt.  311. 

Our  judgment,  however,  is  that  where  the  infant  does  fraudulently 
and  falsely  represent  that  he  is  of  full  age,  he  is  liable  in  an  action 
ex  delicto  for  the  injury  resulting  from  his  tort.  This  result  does 
not  involve  a  violation  of  the  principle  that  an  infant  is  not  liable 
where  the  consequence  would  be  an  indirect  enforcement  of  his  con- 
tract, for  the  recovery  is  not  upon  the  contract,  as  that  is  treated 
as  of  no  effect;  nor  is  he  made  to  pay  the  contract-price  of  the 
article  purchased  by  him,  as  he  is  only  held  to  answer  for  the  actual 
loss  caused  by  his  fraud.  In  holding  him  responsible  for  the  conse- 
quences of  his  wrong,  an  equitable  conclusion  is  reached  and  one 
which  strictly  harmonizes  with  the  general  doctrine  that  an  infant  is 
liable  for  his  torts.  Nor  does  our  conclusion  invalidate  the  doctrine 
that  an  infant  has  no  power  to  deny  his  disability,  for  it  concedes 
this,  but  affirms  that  he  must  answer  for  his  positive  fraud. 

Our  conclusion  that  an  infant  is  liable  in  tort  for  the  actual  loss 
resulting  from  a  false  and  fraudulent  representation  of  his  age,  is 
well  sustained  by  authority,  and  it  is  strongly  entrenched  in  princi- 
ple, although,  as  we  have  said,  there  is  a  fierce  conflict.  It  has  been 
sanctioned  by  this  court,  although,  perhaps,  not  in  a  strictly  authori- 
tative way,  for  it  was  said  by  Worden,  J.,  speaking  for  the  court,  in 
Carpenter  v.  Caipenter,  supra,  that,  "  The  false  representation  by  the 
plaintiff,  as  alleged,  that  he  was  of  full  age,  does  not  make  the  con- 
tract valid,  nor  does  it  estop  the  plaintiff  to  set  up  his  infancy  in 
avoidance  of  the  contract;  although  it  may  furnish  ground  of  an 
action  against  him  for  the  tort.  See  i  Parsons,  Cont.  317;  2  Kent's 
Com.  (i2th  ed.)  241." 

The  reasoning  of  the  court  in  the  case  of  Pittsburgh,  etc.,  R.  IV. 
Co.  v.  Adams,  105  Ind.  151,  tends  strongly  in  the  same  direction. 

In  Neff  V.   Landis,   i   Atl.   R.    177,   it  was  said:      "  It  cannot  be 

doubted  that  a  minor  who,  under  such  circumstances,  obtains  the 

property   of   another,  by   pretending   to   be   of  full   age  and  legally 

responsible,  when,  in  fact,  he  is  not,  is  guilty  of  a  fraud  by  false  pre- 

TDoMESTic  Relations  —  32.] 


498  INFANCY. 

tcnce,  for  which  he  is  answerable  under  the  criminal  law.      2  Whart. 
Crim.  Law,  2099." 

If  it  be  true,  as  asserted  in  the  case  from  which  we  have  quoted, 
that  an  infant  who  falsely  and  fraudulently  represents  himself  to  be 
of  full  age  is  amenable  to  the  criminal  law,  it  must  be  true,  that  he 
is  responsible  in  an  action  of  tort  to  the  person  whom  he  has 
wronged.  The  earlier  English  cases  were  undoubtedly  against  our 
conclusion,  but  the  later  cases  seem  to  take  a  different  view  of  the 
question;  thus,  in  Ex  parte  Unity,  etc.,  Banking  Ass' n,  3  DeG.  &  J. 
63,  it  was  held  that,  in  equity,  an  infant  who  falsely  and  fraudu- 
lently represented  himself  to  be  of  full  age  was  bound  to  pay  the 
obligation  entered  into  on  the  faith  of  his  representation. 

In  the  note  to  the  case  of  Humphrey  v.  Douglass,  33  Am.  Dec. 
177,  Mr.  Freeman  says,  in  speaking  of  the  decision  in  Kilgore  v. 
yordan,  17  Texas,  341,  that,  "  Aside  from  any  question  of  authority, 
the  rule  given,  in  the  case  last  cited,  by  Hemphill,  C.  J.,  as  the  rule 
of  the  Spanish,  derived  from  the  civil  law,  that  if  a  minor  represents 
himself  to  be  of  age,  and  from  his  person  he  appears  to  be  so,  he 
will  be  bound  by  any  contract  made  with  him,  seems  to  be  most 
consonant  with  reason  and  justice." 

Mr.  Pomeroy  pushes  the  doctrine  much  farther  than  we  are 
required  to  do  here,  for  he  says:  "  If  an  infant  procures  an  agree- 
ment to  be  made  through  false  and  fraudulent  representations  that 
he  is  of  age,  a  court  of  equity  will  enforce  his  liability  as  though  he 
were  adult,  and  may  cancel  a  conveyance  or  executed  contract 
obtained  by  fraud."     2  Pomeroy,  Eq.,  sec.  945. 

In  addition  to  cases  cited  which  sustain  our  view  may  be  cited  the 
following  authorities:  Fitts  v.  Hall,  9  N.  H.  441 ;  Eckstein  v.  Frank, 
I  Daly,  334;  Sckuhemann  v.  Paradise,  46  How.  Pr.  426;  Tyler, 
Infancy,  182;   i  Parsons,  Cont.  317,  note;   i  Story  Eq.  385. 

The  English  cases  recognize  a  distinction  between  suits  of  equi- 
table cognizance  and  actions  at  law,  and  declare  that  a  representation 
as  to  age,  when  falsely  and  fraudulently  made,  will  bind  an  infant  in 
equity.  Ex  parte  Unity,  etc.,  Ass'n,  supra,  and  authorities  cited. 
Under  our  system  we  can  recognize  no  such  distinction,  a  distinc- 
tion- which  is,  as  we  think,  a  shadowy  one  under  any  system,  for  in 
our  system  the  rules  of  law  and  equity  are  merged  and  mingled. 
Under  such  a  system  as  ours  courts  should  pursue  such  a  course  as 
will  render  justice  to  suitors  under  the  rules  of  equity,  which,  after 
all,  are  but  the  embodiment  of  the  principles  of  natural  justice.  It 
cannot  be  the  duty  of  any  court  of  Indiana  to  deny  substantial  jus- 
tice because  the  complaint  states  a  cause  of  action  in  a  peculiar 
form,  for  under  our  system  courts  must  render  such  judgments  as 


TORTS    BY   INFANTS.  499 

yield  justice  to  those  who  invoke  their  aid,  irrespective  of  mere 
forms,  in  all  cases  where  the  substantial  facts  are  stated,  and  are 
such  as  entitle  the  party  to  the  general  relief  sought.  They  will  not 
inquire  whether  the  proceeding  which  asks  their  aid  is  at  law  or  in 
equity,  but  they  will  render  justice  to  those  who  ask  it  in  the  method 
prescribed  by  our  Code  of  Civil  Procedure. 

It  is  laid  down  as  a  general  rule  by  all  the  text-writers,  that 
infants  are  liable  for  their  torts,  but  many  of  these  writers,  when 
they  come  to  consider  such  a  question  as  we  have  here,  are  sorely 
perplexed  by  the  early  English  decisions,  and,  by  subtle  refinement, 
attempt  to  discriminate  between  pure  torts  and  torts  connected  with 
contracts,  and  to  create  an  artificial  class  of  actions.  Their  reason- 
ing is  not  satisfactory.  Aside  from  mere  personal  torts,  it  is  scarcely 
possible  to  conceive  a  tort  not  in  some  way  connected  with  a  con- 
tract, and  yet  all  the  authorities  agree  that  the  liability  of  infants  is 
not  confined  to  mere  personal  torts.  There  is  a  connection  between 
a  contract  and  a  tort  in  every  case  of  bailment,  of  the  bargain  and 
sale  of  personal  property  and  of  the  purchase  and  sale  of  real  estate, 
and  if  an  infant  is  not  responsible  for  his  fraudulent  representation 
of  his  age,  in  connection  with  such  transactions,  there  is  not  within 
the  whole  range  of  business  transactions  any  case  in  which  he  could 
be  made  liable  for  his  fraud.  There  are  many  cases,  far  too  numer- 
ous for  citation,  where  there  is  some  connection  between  -the  con- 
tract and  the  tort,  and  yet  it  is  unhesitatingly  held  that  the  infant  is 
liable  for  his  tort.  Cooley,  Torts,  112,  auth.  cited  in  notes.  The 
cases  certainly  do  agree;  it  is,  indeed,  difficult,  if  not  impossible,  to 
perceive  how  it  could  be  otherwise,  that,  although  there  may  be 
some  connection  between  the  contract  and  the  wrong,  the  infant  may 
be  liable  for  his  tort.  It  seems  to  us  that  the  only  logical  and  defen- 
sible conclusion  is,  that  he  is  liable,  to  the  extent  of  the  loss  actu- 
ally sustained,  for  his  tort  where  a  recovery  can  be  had  without 
giving  effect  to  his  contract.  The  test,  and  the  only  satisfactory 
test,  is  supplied  by  the  answer  to  the  question:  Can  the  infant  be 
held  liable  without  directly  or  indirectly  enforcing  his  promise? 
There  is  no  enforcement  of  a  promise  where  an  infant  who  has  been 
guilty  of  a  positive  fraud  is  made  to  answer  for  the  actual  loss 
his  wrong  has  caused  to  one  who  has  dealt  with  him  in  good 
faith  and  has  exercised  due  diligence.  Nor  does  such  a  rule  open 
the  way  for  a  designing  man  to  take  advantage  of  an  infant,  for  it 
holds  him  to  the  exercise  of  good  faith  and  reasonable  diligence, 
and  does  not  enable  him  to  make  any  profit  out  of  the  transaction 
with  the  infant,  because  it  allows  him  compensation  only  for  the 
actual  loss  sustained.     It  does  not  permit  him  to  make  any  profit 


500  INFANCY. 

out  of  an  executory  contract,  but  it  simply  makes  good  liis  actual 
loss. 

It  is  worthy  of  observation  that  in  the  cases  which  link!  that  an 
infant's  representation  will  not  estop  him  to  deny  his  disability,  it  is 
generally  declared  that  he  may,  nevertheless,  be  held  liable  for  his  tort. 

It  may  often  happen  that  the  age  and  appearance  of  the  infant 
will  be  such  as  to  preclude  a  recovery  for  a  fraud,  because  reason- 
able diligence,  which  is  exacted  in  all  cases,  would  warn  the  plaintiff 
of  the  non-age  of  the  defeiulant.  On  ttie  other  hand,  the  infant 
may  be  in  years  almost  of  full  age,  and  in  appearance  entirely  so, 
and  thus  deceive  the  most  diligent  by  his  representations.  Suppose 
a  minor,  who  is  really  twenty  years  and  ten  months  old,  but  in 
appearance  a  man  of  full  age,  should  obtain  goods  by  falsely  and 
fraudulently  representing  that  he  is  twenty-one  years  of  age,  ought 
he  not,  on  the  plainest  principles  of  natural  justice,  to  be  held  liable, 
not  on  his  contract,  but  for  the  loss  occasioned  by  his  fraud? 

The  rule  which  we  adopt  will  enable  courts  to  protect,  in  some 
measure,  the  honest  and  diligent,  but  none  other,  who  are  misled  by 
a  false  and  fraudulent  representation,  and  it  will  not  open  the  way 
to  imposition  upon  infants,  for,  in  no  event,  can  anything  more  than 
the  actual  loss  sustained  be  recovered,  and  no  person  who  trusts, 
where  fair  dealing  and  due  diligence  require  him  not  to  trust,  can 
reap  any  benefit.  It  will  not  apply  to  an  executory  contract  which 
an  infant  refuses  to  perform,  for,  in  such  a  case,  the  action  would 
be  on  the  promise,  and  the  only  recovery  that  could  be  had  for  the 
breach  of  contract,  and  the  terms  of  our  rule  forbid  such  a  result, 
but  it  will  apply  where  an  infant,  on  the  faith  of  his  false  and  fraudu- 
lent representation,  obtains  property  from  another  and  then  repudi- 
ates his  contract.  Any  other  rule  would  in  many  cases  suffer  a  per- 
son guilty  of  positive  fraud  to  escape  loss,  although  his  fraud  had 
enabled  him  to  secure  and  make  way  with  the  property  of  one  who 
had  trusted  in  good  faith  to  his  representation,  and  had  exercised 
due  care  and  diligence.  We  are  unwilling  to  sanction  any  rule 
which  will  enable  an  infant  who  has  obtained  the  property  of 
another,  by  falsely  and  fraudulently  representing  himself  to  be  of 
full  age,  to  enjoy  the  fruits  of  his  fraud,  either  by  keeping  the  prop- 
erty himself  or  selling  it  to  another,  and  when  asked  to  pay  its  just 
and  reasonable  value  successfully  plead  his  infancy.  Such  a  rule 
would  make  the  defence  of  infancy  both  a  shield  and  a  sword,  and 
this  is  a  result  which  the  principles  of  justice  forbid,  for  they 
require  that  it  should  be  merely  a  shield  of  defence. 

Judgment  reversed  with  instructions  to  overrule  the  demurrer  to 
the  complaint. 


TORTS   BY    INFANTS.  5OI 


SLAYTON  V.  BARRY. 

175  Mass.  513.  —  1900. 

Morton,  J.  The  declaration  in  this  case  is  in  two  counts.  The 
first  count  alleges,  in  substance,  that  the  defendant,  intending  to  de- 
fraud the  plaintiff,  deceitfully  and  fraudulently  represented  to  him 
that  he  was  of  full  age,  and  thereby  induced  the  plaintiff  to  sell  and 
deliver  to  him  the  goods  described,  and,  though  often  requested,  had 
refused  to  pay  for  or  return  the  goods,  but  had  delivered  them  to  per- 
sons unknown  to  the  plaintiff.  The  second  count  is  in  tort  for  the  con- 
version of  the  goods  described  in  the  first  count.  The  case  is  here  on 
exceptions  to  the  refusal  of  the  presiding  judge  to  give  certain  instruc- 
tions requested  by  the  plaintiff,  and  to  his  ruling  ordering  a  verdict  for 
the  defendant.  The  question  is  whether  the  plaintiff  can  maintain  his 
action.  He  could  not  bring  an  action  of  contract,  and  so  has  brought 
an  action  of  tort.  The  precise  question  presented  has  never  been 
passed  upon  by  this  court.  Merriam  v.  Cunningham^  11  Cush.  40,  43. 
In  other  jurisdictions  it  has  been  decided  differently  by  different 
courts.  We  think  that  the  weight  of  authority  is  against  the  right 
to  maintain  the  action.  Johnson  v.  Pie,  i  Lev.  169,  i  Sid.  258,  i 
Keb.  905;  Grove  v.  Nevill,  i  Keb.  778;  Jennings  v.  Rundall,  8  Term 
R.  335;  Green  v.  Greenbank,  2  Marsh.  485;  Price  v.  Heivett,  8  Exch. 
146;  Wright  w.  Leonard,  11  C.  B.  (N.  S.)  258;  DeRoov.  Foster.  12 
C.  B.  (N.  S.)  272;  Gilson  v.  Spear,  38  Vt.  310;  Nash  v.  Jewett,  61  Vt. 
501,  18  Atl.  47,4  L.  R.  A.  561;  Ferguson  v.  Bobo,  54  Miss.  121; 
Brown  v.  Dunham,  i  Root,  272;  Geer  v.  Hovey,  Id.  179;  Wilt  v. 
Welsh,  6  Watts,  9;  Burns  v.  Hi//,  19  Ga.  22;  Ki/gore  v.  Jordan,  17 
Tex.  341;  Benj.  Sales  (6th  Ed.),  23;  Cooley,  Torts  (2d  Ed.)  126; 
Add.  Torts,  §  1314.  See,  contra,  Fitts\.  Ha//,  9  N.  H.  441;  Eatonv. 
Hi//,  50  N.  H.  235;  Ha//  v.  Butterfie/d,  59  N.  H.  354;  Rice  v.  Boyer, 
108  Ind.  472,  9  N.  E.  420;    Wa//ace  v.  Morss,  5  Hill,  391. 

The  general  rule  is,  of  course,  that  infants  are  liable  for  their  torts. 
Sikesv.  Johnson,  16  Mass.  389;  Homers.  Thwing,  3  Pick.  492;  S/iaio 
v.  Coffin,  58  Me.  254;  Vasse  v.  Smith,  6  Cranch,  226,  3  L.  Ed.  207. 
But  the  rule  is  not  an  unlimited  one,  but  is  to  be  applied  with  due 
regard  to  the  other  equally  well-settled  rule,  that,  with  certain  ex- 
ceptions, they  are  not  liable  on  their  contracts;  and  the  dominant 
consideration  is  not  that  of  liability  for  their  torts,  but  of  protection 
from  their  contracts.  The  true  rule  seems  to  us  to  be  as  stated  in 
Association  v.  Fairhurst,  9  Exch.  422,  429,  where  it  was  sought  to 
hold  a  married  woman  for  a  fraudulent  misrepresentation,  namely: 
if  the  fraud  "is  directly  connected  with  the  contract,     *     *     *     and 


502  INFANCY. 

is  the  means  of  effecting  it,  and  parcel  of  the  same  transaction,"  then 
the  infant  will  not  be  liable  in  tort.  The  rule  is  stated  in  2  Kent 
C.'om.  (8th  Ed.)  §  241,  as  follows:  "The  fraudulent  act,  to  charge 
him  [the  infant],  must  be  wholly  tortious;  and  a  matter  arising 
fx  contractu,  though  infected  with  fraud,  cannot  be  changed  into  a 
tort  in  order  to  charge  the  infant  in  trover  or  case  by  a  change  in 
the  form  of  the  action."  In  the  present  case  it  seems  to  us  that  the 
fraud  on  which  the  plaintiff  relies  was  part  and  parcel  of  the  contract, 
and  directly  connected  with  it.  The  plaintiff  cannot  maintain  his 
action  without  showing  that  there  was  a  contract,  which  he  was 
induced  to  enter  into  by  the  defendant's  fraudulent  representations 
in  regard  to  his  capacity  to  contract,  and  that  pursuant  to  that 
contract  there  was  a  sale  and  delivery  of  the  goods  in  question. 
Whether,  as  an  original  proposition,  it  would  be  better  if  the  rule 
were  as  laid  down  in  Fitts  v.  Hall,  supra,  and  Hall  v.  Butterfield, 
supra,  in  New  Hampshire,  and  Rice  v.  Boyer,  supra,  in  Indiana,  we 
need  not  consider.  The  plaintiff  relies  on  Homer  v.  Thwing,  supra; 
Badger  v.  Phinney,  15  Mass.  359;  and  Walker  v.  Davis,  i  Gray,  506. 
In  Walker  v.  Davis,  supra,  there  was  no  completed  contract,  and 
the  title  did  not  pass.  The  sale  of  the  cow  by  the  defendant  oper- 
ated, therefore,  clearly,  as  a  conversion.  Badger  v.  Phinney,  supra, 
was  an  action  of  replevin;  and  it  was  held  that  the  property  had  not 
passed,  or  if  it  had.  that  it  had  revested  in  the  plaintiff  in  conse- 
quence of  the  defendant's  fraud.  The  plaintiff  maintained  his  action 
independently  of  the  contract.  In  Homer  v.  Thwing,  supra,  the  tort 
was  only  incidentally  connected  with  the  contract  of  hiring.  We 
think  that  the  exceptions  should  be  overruled.     So  ordered.* 

'  In  O'Rourke  v.  Ins.  Co.,  23  R.  I.  457,  an  infant,  in  an  application  for  life 
insurance,  made  a  false  statement  which,  by  the  terms  of  the  policy,  was  a 
warranty.  In  an  action  on  the  policy,  the  defence  was  a  breach  of  condition  by 
the  infant;  but  the  court  held  that  "as  an  infant  is  not  liable  on  his  contract, 
he  is  not  liable  for  warranties  or  representations  upon  which  the  contract  is 
based,"  and,  there  having  been  a  verdict  for  plaintiff,  a  new  trial  was  denied. 


TORTS   BY    INFANTS.  503 


STUDWELL  ET  AL.  V.  SHAPTER. 

54  x\.  Y.  249.— 1873. 

LoTT,  Ch.  C.  This  is  an  action  for  the  recovery  of  the  price  and 
value  of  goods  sold  and  delivered  by  the  plaintiffs  to  the  defendant. 

There  was  no  question  made  on  the  trial  as  to  the  fact  of  such  sale 
and  delivery;  but  it  appeared  that  the  defendant  was  at  the  time  an 
infant,  and  on  that  ground  his  counsel  moved  for  a  nonsuit,  and  also 
asked  the  court  to  instruct  the  jury  that  the  plaintiffs  could  not 
recover.  This  was  refused.  The  court  conceded  that  the  action 
was  founded  on  contract,  but  based  his  refusal  on  the  ground  that 
the  statements  in  reference  to  the  contracts  of  sale  were  accom- 
panied with  allegations  of  fraud,  inducing  them  to  be  made,  which 
would  make  the  defendant  liable,  notwithstanding  he  was  an  infant. 
I  do  not  agree  with  him  in  this  view  of  the  case.  It  is  true  that  it 
is  alleged  in  the  complaint  that  the  defendant  in  making  his  pur- 
chases and  in  obtaining  credit  therefor,  made  representations  to  the 
plaintiffs  as  to  his  means  of  payment  and  the  prosperous  condition 
of  the  business  in  which  he  was  engaged;  and  then  it  is  averred  that 
said  representations  were  all  made  with  intent  to  induce  the  plain- 
tiffs to  part  with  their  goods  and  give  the  defendant  credit  therefor; 
and  that  they,  relying  upon  such  representations,  parted  with  their 
goods  and  gave  him  credit  therefor  on  the  strength  of  such  repre- 
sentations, which  they  charged  to  be  false  and  untrue.  Giving  full 
effect  to  those  allegations,  they  are  insufficient  to  charge  the  defend- 
ant with  a  legal  liability  on  the  contracts  which  the  plaintiffs  were, 
by  those  representations,  induced  to  enter  into  with  him. 

They  do  not  seek  in  this  action  to  recover  damages  resulting  from 
such  representations  on  the  ground  of  their  falsity,  but  to  enforce 
the  agreements  on  contracts  of  purchase  made  by  the  defendant  from 
time  to  time.  Indeed,  they  do  not  allege  that  the  statements 
made  by  the  defendant  to  them  in  relation  to  his  means  and  business 
were  so  made  with  the  intent  to  deceive  or  defraud  them,  nor  with 
the  intent  to  deceive  or  defraud  them,  nor  with  the  intention  at  the 
time,  of  not  paying  for  the  goods  that  should  be  sold  to  them,  but 
that  what  was  stated  was  said  with  the  object  of  inducing  them  to 
deal  with  him  as  a  purchaser  on  credit.  Is  this  different  in  princi- 
ple from  a  representation  that  he  was  of  full  age?  That,  clearly, 
would  not  have  made  him  liable.  The  fact  that  a  party  is  actually 
engaged  in  commercial  business,  thus  holding  himself  out  to  the 
public  as  competent  to  contract,  is  as  full  and  expressive  a  declara- 
tion to  all  persons  with  whom  he  is  dealing  that  he  is  of  age,  as  a 


504  INFANCY. 

statement  of  that  fact  is  to  a  single  individual.  If,  under  the  cir- 
cumstances, an  infant  can  be  held  liable  on  his  contracts,  he  would 
be  deprived  of  all  the  protection  which  the  law  intended  to  give  him. 

Some  of  the  representations  on  which  the  plaintiffs  rely  to  hold 
the  defendant  liable  appear  to  have  been  made  with  a  knowledge  on 
their  part  that  he  was  an  infant.  If  so,  such  knowledge  would 
charge  them  with  notice  that  they  were  dealing  with  a  person  who 
was  under  a  legal  disability  to  enter  into  a  valid  contract,  and  no 
inducement  held  out  to  them  to  make  an  agreement  which  he  was 
disqualified  from  making,  could  give  it  validity. 

Viewing  this  action  as  one  founded  on  contract,  and  not  based  on 
fraud  in  disaffirmance  of  it,  I  am  of  opinion  that  the  judgment 
appealed  from  should  be  reversed  and  a  new  trial  ordered,  costs  to 
abide  the  event. 

All  concur. 

Judgment  reversed. 


COBBEY  V.  BUCHANAN. 

48  Neb.  391. —  1896. 

Ragan,  C.  Before  the  county  judge  of  Gage  county,  sitting  as  a 
justice  of  the  peace,  J.  E.  Cobbey  sued  Elmer  Buchanan  to  recover  for 
certain  professional  legal  services  which  he  alleged  he  had  rendered 
Buchanan,  at  his  request,  of  the  reasonable  value  of  $50.  An  appeal 
was  taken  to  the  District  Court,  from  the  judgment  of  the  county 
judge,  where  the  case  was  again  tried,  resulting  in  a  judgment  of 
dismissal  of  Cobbey's  action,  to  reverse  which  he  prosecutes  to  this 
court  a  petition  in  error. 

1.  The  answer  filed  by  Buchanan  in  the  District  Court,  so  far  as 
material  here,  interposed  two  defences:  (i)  a  general  denial;  and 
(2)  a  plea  of  infancy. 

******** 

2.  The  second  assignment  of  error  argued  is  that  the  District 
Court  erred  in  refusing  to  give  to  the  jury  the  following  instruction: 
"  The  jury  are  instructed  that  if  you  believe  from  the  evidence  that 
the  defendant  employed  the  plaintiff  to  perform  the  services  for 
which  the  action  is  brought,  and  at  the  same  time  represented  to 
the  plaintiff  that  he  had  arrived  at  the  age  of  twenty-one  years, 
then  you  are  instructed  that  you  may  consider  such  statements,  and 
such  declaration  may  be  considered  by  you,  in  determining  his  age 
at  the  time  such  employment  was  made."  The  court  did  not  err  in 
refusing  to  give  this  instruction,      (i)  The   instruction  was    asked 


TORTS   BY   INFANTS.  505 

upon  the  ground  that,  if  Buchanan  had  represented  himself  to  be  of 
age,  such  representation  on  his  part  estopped  him  from  asserting 
the  defence  of  infancy.  This  in  not  the  law.  As  a  general  rule, 
the  doctrine  of  estoppel  ///  pais  is  not  applicable  to  infants.  Wie- 
land  V.  Kobick,  no  111.  16;  Schnell  v .  City  of  Chicago^  38  111.  383.  In 
Sims  V.  Everhardt^  102  U.  S.  300,  the  Supreme  Court  said:  "  The 
question  is  whether  acts  and  declarations  of  an  infant  during 
infancy  can  estop  him  from  asserting  the  invalidity  of  his  deed  after 
he  has  attained  his  majority.  In  regard  to  this  there  can  be  no 
doubt  founded  either  upon  reason  or  authority.  Without  spending 
time  to  look  at  the  reason,  the  authorities  are  all  one  way.  An 
estoppel  in  pais  is  not  applicable  to  infants,  and  a  fraudulent  repre- 
sentation of  capacity  cannot  be  an  equivalent  for  actual  capacity. 
*  *  *  An  assertion  of  an  estoppel  against  him  is  but  a  claim  that 
he  has  assented  or  contracted.  But  he  can  no  more  do  that  effec- 
tively than  he  can  make  the  contract  alleged  to  be  confirmed."  In 
Brmvn^.  McCune,  5  Sandf.  224,  it  was  said:  "We  are  not  aware 
that  any  case  has  gone  the  length  of  holding  a  party  estopped  by 
anything  he  has  said  or  done  while  he  is  under  age,  and  we  think  it 
would  be  repugnant  to  the  principle  upon  whi-ch  the  law  protects 
infants  from  civil  liabilities  in  general.  *  *  *  We  are  clear  that 
the  doctrine  of  estoppel  is  inapplicable  to  infants."  We  are  aware 
that  there  are  cases  holding  a  party  estopped  from  asserting  the 
defence  of  infancy  when  he  had  procured  some  advantage,  benefit, 
or  property  by  fraudulently  representing  himself  to  be  of  age,  and 
where  the  other  party  had  believed  in,  relied  on,  and  acted  upon 
such  false  representations.  Such  are,  among  others,  Campbell  v. 
Ridgley,  13  Vict.  Law  R.  (Aus.)  701;  Overton  v.  Banister^  3  Hare, 
503;  Hayes  Y.  Parker,  41  N.  J.  Eq.  630,  7  Atl.  511;  Schmitheimer  v. 
Eiseman,  7  Bush.  298.  But  in  all  those  cases  the  representation 
made  by  the  infant  as  to  his  age  was  fraudulently  made,  believed 
in,  relied  on,  and  acted  upon  by  the  other  party.  And  in  order  for 
the  representation  made  by  an  infant  as  to  his  being  of  age  to  estop 
him  from  asserting  infancy  as  a  defence,  the  representation  must 
have  been  fraudulently  made  by  the  infant,  believed  in,  relied 
on,  and  acted  upon  by  the  other  party.  Baker  v.  Sto>ie,  136  Mass. 
405.  And,  furthermore,  such  an  estoppel  must  be  pleaded.  In  the 
case  at  bar  the  reply  of  Cobbey  to  Buchanan's  answer  was  a  general 
denial,  and  there  is  no  evidence  whatever  in  the  record  that,  when 
Buchanan  represented  to  Cobbey  that  he  was  of  age,  Cobbey 
believed  such  representation,  or  relied  on  or  acted  upon  it;  in  fact, 


506  INFANCY. 

all  the  evidence  shows  that  Cobbey  was  fully  aware  of  the  fact  that 

Buchanan  was  a  minor. 

******** 

The  judgment   of   the   District   Court   is    right,   and    is  afifirmed. 

Affirmed. 


Chalmers,  J.,  in  FERGUSON  v.  BOBO. 

54  Miss.  121,  127. — 1876. 

Two  principles,  equally  ancient  and  equally  well  settled  with 
respect  to  the  contracts  and  liabilities  of  infants,  and  which,  as 
abstractly  stated,  seem  not  antagonistic,  have  been  found  .in  practice 
to  produce  two  conflicting  lines  of  decision,  which  it  is  difificult  to 
reconcile;  or  rather  it  is  difficult  to  determine  satisfactorily  where 
one  ends  and  the  other  begins,  i.  The  contracts  of  infants,  except 
for  necessaries  with  which  they  have  not  been  supplied  by  their 
guardians,  impose  no  liability  upon  them  which  is  not  voidable  at 
their  election.  2.  Infancy  is  a  shield,  and  not  a  sword,  and  cannot 
be  set  up  to  defeat  liability  for  torts,  trespasses  or  frauds. 

To  give  to  each  of  -these  principles  its  appropriate  force,  and  to  pre- 
vent one  from  trenching  upon  the  other,  has  been  frequently  found 
a  matter  of  such  difficulty,  that  many  courts  have  either  expressly 
denied  or  silently  ignored  the  doctrine  that  an  infant  can  be  held 
liable  in  a  court  of  law  for  a  fraud  or  deceit  in  any  manner  connected 
with  a  contract;  limiting  such  liability  to  acts  of  trespass,  or  pure 
torts,  properly  so  called.  They  neither  allow  an  action  at  law 
brought  by  the  infant  to  be  defeated,  nor  do  they  permit  a  judgment 
to  be  rendered  against  him,  by  reason  of  any  cheat,  fraud,  or  false- 
hood perpetrated  or  uttered  by  him  in  the  course  of  contracts  which 
he  has  entered  into.  They  take  the  broad  ground  that  the  validity 
of  his  contracts  is  a  mantle  of  protection  thrown  around  him  by  the 
law,  and  of  which  all  persons  dealing  with  him  must  take  notice; 
that  neither  an  honest  belief  by  the  opposite  party  that  he  is  of  full 
age,  nor  a  false  affirmation  to  the  same  effect  by  himself,  can  change 
the  result,  since  the  incapacity  to  bind  himself  springs  not  out  of  the 
belief  of  either  of  the  contracting  parties  upon  the  subject,  but  upon 
the  existence  of  the  fact  of  minority.  They  argue,  therefore,  that 
to  hold  the  infant  liable  for  or  estopped  by  any  fraud  or  falsehood, 
in  any  manner  connected  with  the  contract,  whether  before  or  at 
the  time  of  making  it,  is  to  deprive  him  of  the  shield  which  the  law 
has  given  him  in  consideration  of  his  ignorance  and  inexperience. 

All  the  cases  holding  this  doctrine  may  be  traced  back  to  yohn- 
son  V.  Pie,   decided  in  17  of  Charles  II.,  and  reported  in  i   Lev.  169. 


TORTS   BY    INFANTS.  507 

That  was  an  action  on  the  case,  "  for  that  the  defendant,  being  an 
infant,  affirmed  himself  to  be  of  full  age,  and  by  means  thereof  the 
plaintiff  lent  him  ^j^ioo,  and  so  he  had  cheated  the  plaintiff  by  this 
false  affirmation."  After  verdict  for  plaintiff,  motion  in  arrest  of 
judgment  was  made,  upon  the  ground  that  action  "  would  not  lie  for 
this  false  affirmation."  Counsel  cited  Grove  v.  Ncinll,  16  Car.  II. 
Rot.  400,  decided  the  previous  year,  in  which  it  had  been  ruled  that 
an  action  would  not  lie  against  an  infant  for  selling  a  false  jewel, 
affirming  it  to  be  a  true  one.  To  which  it  is  answered,  that  this  was 
an  action  of  trespass  on  the  case,  and  that  an  infant  was  chargeable 
for  trespasses,  though  not  for  contracts.  The  judges  divided.  Two 
of  them  thought  that  the  motion  in  arrest  should  be  sustained, 
because  the  affirmation  of  an  infant  was  void.  The  third  judge 
would  have  denied  the  motion,  likening  the  false  affirmation  to  a 
trespass,  or  to  cheating  with  false  dice.  The  motion  in  arrest  was 
afterwards  sustained,      i  Keble,  905. 

As  before  remarked,  this  judgment  has  formed  the  basis  of  a  long 
line  of  decisions  in  England  and  America,  substantially  denying  any 
redress  in  a  court  of  law  against  the  fraudulent  conduct  of  infants  in 
any  manner  connected  with  a  contract.  McPherson  on  Infancy, 
482;  yennings  v.  Riindall,  8  T.  R.  335;  Bronni  v.  Dunham^  i  Root, 
272;  West  V.  Moore,  14  Vt.  447;  People  v.  Kendall,  25  Wend.  399; 
Price  V.  Hewett,  8  Exch.  146;  Penrose  v.  Curren,  3  Rawle,  351;  IVilt 
T.  Welsh,  6  Watts.  9;  Brown  v.  McCune,  5  Sandf.  (N.  Y.)  224; 
Norris  v.   Wait,  2  Rich.  Law,  148. 

The  other  class  of  decisions  to  which  we  have  alluded  fully  recog- 
nizes the  non-liability  of  an  infant  upon  his  contracts,  but  they  draw 
a  distinction  between  holding  him  upon  the  contract  and  estopping 
him,  or  making  him  responsible  for  his  frauds,  deceits  and  false- 
hoods, in  matters  connected  with  but  not  forming  a  constituent  part 
of  it.  They  say  that  the  action  brought,  or  the  defence  set  up, 
against  him  must  sound  in  tort,  and  not  in  contract;  and,  if  it 
does  sound  in  tort,  it  will  not  be  defeated,  although  the  deceit  com- 
plained of  was  connected  with  the  contract.  Some  of  these  cases 
repudiate  the  authority  of  Johnson  v.  Pie,  ubi  supra,  and  say  that 
the  case  of  Grove  v.  Nevill,  referred  to  above,  and  relied  upon  by 
counsel  in  that  case,  was  not  in  point,  because  the  action,  brought 
for  the  affirmation  that  the  false  jewel  was  a  true  one,  was  but  an 
action  upon  the  warranty,  which  necessarily  is  an  action  upon  the 
contract,  whereas  the  action  for  the  false  affirmation  by  the  minor 
that  he  was  adult,  while  it  induced  the  opposite  party  to  enter  into 
the  contract,  formed  no  part  of  it.  Thus,  in  Fitts  v.  Hall,  9  N.  H. 
441,  an  infant  had  bought  a  lot  of  hats,  for  which  he  executed  his 


5o8 


INFANCY. 


note.  Upon  suit  brought  upon  the  note  he  successfully  interposed 
the  plea  of  infancy.  An  action  was  then  brought  against  him  for 
the  deceit  practiced  in  affirming,  at  and  before  the  purchase,  that  he 
was  an  adult;  and  this  was  maintained  in  an  elaborate  opinion, 
reviewing  the  cases  to  some  extent,  and  expressly  disapproving  of 
yohnson  v.  Pic.  But  in  Prescott  v.  N orris.,  32  N.  H.  loi,  the 
Supreme  Court  of  the  same  state,  while  citing  Fitts  v.  Hall  with 
seeming  approbation,  held  that  an  infant,  who  had  sold  and  war- 
ranted a  barrel  of  gin  as  being  pure,  could  not  be  held  liable  for  a 
false  warranty,  because  that  was  a  part  of  the  contract.  So,  too,  in 
South  Carolina,  while  in  the  case  cited  above  of  Norris  v.  Wait.,  it 
was  said  that  an  infant  could  not  prejudice  his  rights  in  a  court  of 
law  by  neglecting  to  state  his  title  to  the  purchaser  of  his  property 
from  another,  yet,  in  the  same  state  it  was  held,  in  Vance  v.  Word, 
I  Nott  &  McCord,  197,  that  infancy  was  no  defence  to  an  action  for 
a  deceit  practiced  in  selling  a  horse. 

As  shadowy  and  confusing  as  this  distinction  between  non-liability 
on  the  contract  and  the  liability  arising  from  some  fraud  practiced 
in  connection  with  it  may  sometimes  become,  it  has  received,  in 
some  shape,  the  support  of  a  very  large  number  of  courts,  and  of 
many  of  the  most  eminent  commentators,  and  maybe  said  to  be  sus- 
tained by  the  weight  of  American,  if  not  of  English,  authority. 

The  Supreme  Court  of  Massachusetts  went  to  the  length  of  hold- 
ing that,  where  goods  had  been  obtained  by  a  minor  upon  the  false 
affirmation  that  he  was  of  age,  the  fraud  vitiated  the  contract,  that 
no  title  ever  vested  in  the  minor,  that  he  might  be  treated  as 
having  unlawfully  converted  them,  and  might  be  sued  in  trover  or 
replevin.  Badger  v.  Phinney,  15  Mass.  359.  This  doctrine  is  expressly 
sanctioned  by  Judge  Story.     Story  on  Contracts,  sees.  107,  iii. 

Kent  declares  that  "  infants  are  liable  in  actions  ex  delicto 
whether  founded  on  positive  wrongs,  as  trespass  or  assault,  or  con- 
structive torts  or  frauds."  He  warns  us,  however,  that  the  act  must 
be  wholly  tortious,  and  that  "  a  matter  arising  ex  contractu,  though 
infected  with  fraud,  cannot  be  changed  into  a  tort  in  order  to  charge 
the  infant  in  trover  or  case  by  a  change  in  the  form  of  the  action." 
2  Kent's  Com.  241.  The  warning  is  salutary;  but  whether  it  can 
always  be  heeded,  and  the  proper  line  of  distinction  observed,  is 
somewhat  doubtful. 

In  the  American  notes  to  the  case  of  In  re  King,  68  Eng.  Ch.  62, 
s.  c.  3  De  Gex  &  J.  63,  there  is  a  summary  of  what  seems  to  us, 
from  a  somewhat  extended  examination  of  the  cases,  to  be  the  rule 
established  by  the  great  weight  of  American  authority.  It  may  be 
thus  stated:     In  actions  at  law  based    upon   a  contract,    it  is   no 


TORTS    BY    INFANTS. 


509 


answer  to  a  plea  of  infancy  that  the  infant,  at  the  time  of  entering 
into  the  contract,  fraudulently  represented  himself  to  be  of  full  age, 
and  thereby  deceived  the  other  party;  nor  can  any  action  brought 
by  the  other  party,  which  is  based  upon  the  contract,  be  supported 
or  helped  by  an  averment  of  such  representation,  or  of  any  other 
frauds  or  deceits.  But  infants  are  liable  for  frauds  and  torts  to  the 
same  extent  as  adults,  and  where  actions  ex  delicto  are  brought  to 
make  them  answerable  therefor,  they  cannot  escape  the  consequences 
of  their  acts,  by  reason  of  the  fact  that  the  tort  or  fraud  was  connected 
with  a  contract,  unless  it  constituted  the  consideration  of  it. 
AVherever  it  does  constitute  the  basis  of  the  contract,  as  in  an 
action  for  a  breach  of  a  fraudulent  warranty,  then  the  warning  of 
Chancellor  Kent,  against  being  deceived  by  a  mere  change  in  the 
form  of  action,  will  apply. 

These  principles  find  illustration  in  the  following  among  many 
other  cases:  HumpJu-ey  v.  Douglass,  10  Vt.  71;  Lewis  v.  Littlefield, 
15  Me.  233;  Wallace  v.  Morss,  5  Hill  (N.  Y.)  391;  Vasse  v.  Stnith, 
6  Cranch.  226;  Walker  v.  Davis,  i  Gray,  506;  Homer  v.  Thwing, 
3  Pick.  492;  Barley  v.  Russell,  10  N.  H.  184;  Kilgore  v.  J^ordan,  17 
Tex.  341;  Fish  v.  Ferris,  5  Duer,  49;  Norrisv.  Vance,  3  Rich.  164; 
Reeve  on  Domestic  Relations,  259;  Totvne  v.  Wiley,  23  Vt.  355; 
Elwellv.  Martin,  32  Vt.  217;   Oliver  v .  McClellan,  21  Ala.  675. 

Turning  from  courts  of  law  to  those  of  equity,  we  find  the  law  of 
estoppel,  as  applicable  to  the  contracts  of  infants,  on  a  much  more 
satisfactory  and  clearly  defined  footing.  From  the  earliest  times  it 
has  been  held  that  infants  will  be  estopped  by  a  court  of  chancery 
from  asserting  title  to  property  where,  either  by  their  silence  or 
their  active  interference,  they  have  entrapped  third  persons  into 
purchasing  it  from  others,  or  into  advancing  money  upon  it. 

It  may  be  stated  as  a  general  proposition,  fully  borne  out  by  the 
authorities,  that  whenever  an  infant  who  has  arrived  at  years  of  dis- 
cretion, by  direct  participation,  or  by  silence,  when  he  was  called 
upon  to  speak,  has  entrapped  a  party,  ignorant  of  his  title  or  of  his 
minority,  into  purchasing  his  property  from  another,  he  will  be 
estopped  in  a  court  of  chancery  from  setting  up  such  title.  Sugden 
on  Vendors,  507,  508;  Watts  v.  Creswell,  9  Vin.  Abr.  415;  Cory  v. 
Gertcken,  2  Madd.  40,  46;  i  Story  Eq.  Jur.  §  385;  Hall  v.  Timmons, 
2  Rich.  Eq.  120;  Whittingtonv .  Wright,  9  Ga.  23;  Herman  on  Estoppel, 
416,  and  authorities  there  cited.  How  long  before  this  doctrine 
will  be  fully  adopted  by  courts  of  law,  as  so  many  equitable  principles 
have  been,  the  future  history  of  our  jurisprudence  must  determine. 


5IO  INFANCY. 

ROYCE,  J.,  IN  RAY  V.  TUBES. 

50  Vt.  688,  694.  — 1878. 

The  referee  has  found  that  the  horse  was  overdriven,  and  died  from 
the  effects  of  such  overdriving.  The  overdriving,  which  produced 
his  death,  was  upon  a  route  not  embraced  in  the  contract  of  bail- 
ment; and  upon  the  authority  of  the  cases  cited,  the  defendant  was 
liable  in  an  action  of  tort,  notwithstanding  his  infancy,  for  his  value. 

The  note  upon  which  this  action  is  predicated  was  given  in  settle- 
ment of  the  claim  for  which  the  defendant  was  so  liable.  It  is  now 
claimed  that  the  tort  was  merged  in  the  note,  and  that  no  recovery 
can  be  had  upon  the  note,  under  the  elementary  rule  that  the  notes 
of  an  infant  are  voidable. 

The  rule  of  the  common  law  was,  that  the  note  of  an  infant  given 
for  necessaries  was  voidable.  But  in  Bradley  v.  Pratt,  23  Vt.  378, 
the  court  held  that  the  note  of  an  infant  given  for  necessaries  was 
binding;  and  that  the  liability  of  an  infant  did  not  depend  upon  the 
form  of  action,  but  upon  the  consideration  upon  which  the  claim  is 
based.  This  seems  to  us  to  be  a  reasonable  rule;  and  that  in  its 
application,  the  infant  is  not  deprived  of  any  right  which  it  is  the 
object  of  the  law  to  accord  to  him.  An  infant,  under  certain  cir- 
cumstances, may  pledge  his  credit  for  necessaries;  and  if  his  prom- 
ise to  pay  for  such  necessaries  is  evidenced  by  his  note,  the  note  is 
collectible.  The  law  makes  him  liable  for  his  torts;  and  where  he 
elects  to  settle  such  liability  by  giving  his  note,  as  long  as  the  con- 
sideration for  the  note  is  open  to  inquiry,  we  see  no  reason  why  he 
should  not  be  held  liable  in  an  action  upon  the  note,  to  the  same 
extent  that  he  would  be  if  the  action  had  been  brought  upon  the 
cause  of  action  which  formed  the  consideration  for  the  note.  The 
note  in  suit  having  been  given  in  settlement  of  a  claim  for  which  the 
defendant  was  liable,  and  no  fraud  nor  imposition  having  been  prac- 
ticed in  obtaining  it,  the  plea  of  infancy  is  not  available  to  defeat  it. 


HANKS  ads.  DEAL. 

3  McCoRD  (S.  C),  257. — 1825. 

This  was  an  appeal  from  the  judgment  of  a  magistrate.  The 
appellant,  an  infant,  committed  a  tort,  for  which  he  was  sued;  the 
matter  was  submitted  to  arbitration,  and  the  arbitrators  awarded 
against  him.  The  magistrate  thought,  that  as  the  note  was  given 
for  damages  for  a  tort,  for  which  he  was  liable,  the   obligation   of 


CRIMES   BY    INFANTS.  511 

the  note  was  valid.  Judge  Gaillard  dismissed  the  appeal,  and  con- 
firmed the  decision  of  the  magistrate. 

A  motion  was  now  made  to  reverse  the  decision,  because  the 
award  was  voidable  at  least,  and  consequently  the  note  was  so. 

Johnson,  J.  Generally  all  contracts  made  by  infants  are  either 
void  or  voidable.  The  exceptions  to  this  rule  consist  of  contracts 
for  his  benefit;  and  even  amongst  these,  the  only  one,  perhaps,  by 
which  he  is  absolutely  bound,  is  for  necessaries.  3  Bacon,  Inf.  and 
Age,  Letters  F  and  I. 

It  is  true,  as  is  contended  for  in  support  of  the  motion,  that  an 
infant  is  liable  for  torts;  and  it  is  concluded  that  therefore  he  is 
liable  on  his  contract  to  make  compensation  for  the  injury,  as  bene- 
ficial to  himself.  If  we  give  to  this  argument  the  greatest  latitude, 
the  conclusion  must  fail  for  the  want  of  proof;  for  it  would  be  diffi- 
cult, if  not  impossible,  in  most  cases,  to  ascertain  the  precise  quan- 
tum of  injury.  The  reason  of  the  rule  which  exempts  infants  from 
their  liability  on  contracts,  is  founded  on  their  supposed  want  of 
capacity  and  discretion,  and  the  law  is  so  careful  of  the  rights  of 
infants  that  they  are  protected  from  contracts  to  pay  extravagant 
prices  even  for  necessaries.  3  Bacon,  Tit.  Inf.  Age,  I,  593.  And 
if  the  agreement  be  tested  by  this  reason  it  must  at  once  fall  to  the 
ground;  for  surely  it  must  require  at  least  as  much  capacity  and 
discretion  to  contract  about  a  tort,  as  about  the  ordinary  concerns 
of  life.  The  fact  that  the  consideration  of  the  note  in  question  was 
a  compensation  for  a  tort,  is  an  assumption  not  warranted  by  the 
evidence.  It  is  true  that  the  award  was  on  a  matter  of  that  sort, 
but  an  infant  is  not  bound  by  a  submission  to  an  award;  it  could 
not,  therefore,  constitute  evidence  of  the  fact.  Kyd  on  Awards,  35. 
Motion  granted. 


Crimes  by  Infants, 

THE  STATE  v.  TICE. 

90  Mo.  112. — 1886. 

Sherwood,  J.  The  defendant,  a  boy  under  the  age  of  fourteen 
years,  became  involved  in  a  school  boy  scuffle,  resulting  in  a  fight, 
at,  or  near,  the  close  of  which  he  cut  the  one  with  whom  he  was 
scuffling  with  a  pocket  knife,  hence  the  prosecution  which  termi- 
nated in    verdict  of  guilty  and  a  fine  of  one  hundred  dollars. 

Under  seven  years  of  age  an  infant  cannot  be  guilty  of  felony. 
In  the  interval  between  that  age  and  that  of  fourteen   years,  he  is 


512 


INFANCY. 


prima  facie  adjudged  to  be  doli  incapax.  And  when  an  infant  is 
arraigned  for  a  felony  this  disputable  presumption  of  the  law,  for 
the  onus  in  such  cases  is  on  the  state,  is  to  be  rebutted,  and  the 
"  evidence  of  that  malice  which  is  to  sui)ply  age  ought  to  be  strong 
and  clear  beyond  all  doubt  and  contradiction."  4  Black.  Com.  24. 
In  this  way  only  can  the  legal  maxim  he  applied  that  "  malitia  sup- 
plet  cetatem."  Here  there  was  no  attempt  made  by  the  state  to 
prove  that  the  boy  in  question  was  possessed  of  that  "  mischievous 
discretion  "  which  supplies  the  place  of  age,  and  rendered  him 
amenable  to  legal  punishment.  This  case,  therefore,  falls  within 
the  rule  announced  in  State  v.  Adams,  76  Mo.  ^55.  And  as  there 
was  no  evidence  on  which  to  base  it,  any  insti^ction  bottomed  on 
the  theory  that  defendant,  by  reason  of  his  intelligence,  was  capable 
of  crime  was  necessarily  erroneous. 

Therefore,  judgment  reversed  and  cause  remanded.     All  concur. 


Capacity  of  Infants  to   Testify. 
WHEELER  V.  UNITED  STATES. 

159  U.  S.  523.— 1895. 

Mr.  Justice  Brewer.  On  January  2,  1895,  George  L.  Wheeler 
was,  by  the  Circuit  Court  of  the  United  States  for  the  Eastern  Dis- 
trict of  Texas,  adjudged  guilty  of  the  crime  of  murder  and  sentenced 
to  be  hanged.  Whereupon  he  sued  out  this  writ  of  error.  Three 
errors  are  alleged:  First,  that  the  indictment  is  fatally  defective  in 
failing  to  allege  that  the  defendant  and  the  deceased  were  not  citi- 
zens of  any  Indian  tribe  or  nation.  It  charges  that  they  were  not 
Indians  nor  citizens  of  the  Indian  territory.  The  precise  question 
was  presented  in  Westmoreland  v.  United  States,  155  U.  S.  545,  and 
under  the  authority  of  that  case  this  indictment  must  be  held 
sufficient. 

Another  contention  is  that  the  court  erred  in  overruling  the 
motion  for  a  new  trial,  but  such  action,  as  has  been  repeatedly  held, 
is  not  assignable  as  error.  Moore  v.  United  States,  150  U.  S.  57; 
//o/der  V.  United  States,    150   U.    S.    91;  B/itz  v.    United  States,    153 

U.  S.  308. 

The  remaining  objection  is  to  the  action  of  the  court  in  permitting 
the  son  of  the  deceased  to  testify.  The  homicide  took  place  on 
June  12,  1894,  and  this  boy  was  five  years  old  on  the  5th  of  July  fol- 
lowing. '  The  case  was  tried  on  December  21,  at  which  time  he  was 
nearly  five  and  a  half  years  of  age.     The  boy,  in  reply  to  questions 


CAPACITY   OF   INFANTS   TO   TESTIFY.  513 

put  to  him  on  his  voir  dire,  said,  among  other  things,  that  he  knew 
the  difference  between  the  truth  and  a  lie;  that  if  he  told  a  lie  the 
bad  man  would  get  him,  and  that  he  was  going  to  tell  the  truth. 
When  further  asked  what  they  would  do  with  him  in  court  if  he  told 
a  lie,  he  replied  that  they  would  put  him  in  jail.  He  also  said  that 
his  mother  had  told  him  that  morning  to  "tell  no  lie,"  and  in 
response  to  a  question  as  to  what  the  clerk  said  to  him,  when  he 
held  up  his  hand,  he  answered,  "  don't  you  tell  no  story."  Other 
questions  were  asked  as  to  his  residence,  his  relationship  to  the 
deceased,  as  to  whether  he  had  ever  been  to  school,  to  which  latter 
inquiry  he  responded  in  the  negative.  As  the  testimony  is  not  all 
preserved  in  the  record,  we  have  before  us  no  inquiry  as  to  the  suffi- 
ciency of  the  testimony  to  uphold  the  verdict,  and  are  limited  to  the 
question  of  the  competency  of  this  witness. 

That  the  boy  was  not,  by  reason  of  his  youth,  as  a  matter  of  law, 
absolutely  disqualified  as  a  witness,  is  clear.  While  no  one  would 
think  of  calling  as  a  witness  an  infant  only  two  or  three  years 
old,  there  is  no  precise  age  which  determines  the  question  of 
competency.  This  depends  on  the  capacity  and  intelligence  of  the 
child,  his  appreciation  of  the  difference  between  truth  and  falsehood, 
as  well  as  of  his  duty  to  tell  the  former.  The  decision  of  this  ques- 
tion rests  primarily  with  the  trial  judge,  who  sees  the  proposed 
witness,  notices  his  manner,  his  apparent  possession  or  lack  of 
intelligence,  and  may  resort  to  any  examination  which  will  tend 
to  disclose  this  capacity  and  intelligence  as  well  as  his  under- 
standing of  the  obligations  of  an  oath.  As  many  of  these  mat- 
ters cannot  be  photographed  into  the  record,  the  decision  of 
the  trial  judge  will  not  be  disturbed  on  review  unless,  from 
that  which  is  preserved,  it  is  clear  that  it  was  erroneous.  These 
rules  have  been  settled  by  many  decisions,  and  there  seems  to 
be  no  dissent  among  the  recent  authorities.  In  Brasier  s  Case 
(i  Leach,  Cr.  L.  199,)  it  is  stated  that  the  question  was  submitted  to 
the  twelve  judges,  and  that  they  were  unanimously  of  the  opinion 
"  that  an  infant,  though  under  the  age  of  seven  years,  may  be  sworn 
in  a  criminal  prosecution,  provided  such  infant  appears,  on  strict 
examination  by  the  court,  to  possess  a  sufficient  knowledge  of  the 
nature  and  consequences  of  an  oath,  for  there  is  no  precise  or  fixed 
rule  as  to  the  time  within  which  infants  are  excluded  from  giving 
evidence;  but  their  admissibility  depends  upon  the  sense  and  reason 
they  entertain  of  the  danger  and  impiety  of  falsehood,  which  is  to  be 
collected  from  their  answers  to  questions  propounded  to  them  by 
the  court."  See,  also,  i  Greenleaf's  Evidence,  sec.  367;  i  Whar- 
ton's Evidence,  sees.  398,  399  and  400;  i  Best  on  Evidence,  sees. 
[Domestic  Relations  —  33  ] 


5  14  INFANCY. 

155,  156;  State  V,  yuneau,  88  Wis.  l8o;  Ridenhoiir  v.  Kansas  City 
Cable  Cotnpany,  102  Mo.  270;  McGuff  v.  State,  88  Ala.  147;  State  v. 
Le%'y,  23  Minn.  104;  Davidson  v.  State,  39  Tex.  129;  Commomvealtk 
V.  Mullins,  2  Allen,  295;  Peterson  v.  State,  47  Ga.  524;  6"/a!/^ 
V.  Edwards,  79  N.  C.  648;  5/^-/^  v.  J^ackson,  9  Oreg.  457;  Blackivell  v . 
State,  II  Ind.  196. 

These  principles  and  authorities  are  decisive  in  this  case.  So  far 
as  can  be  judged  from  the  not  very  extended  examination  which  is 
found  in  the  record,  the  boy  was  intelligent,  understood  the  differ- 
ence between  truth  and  falsehood,  and  the  consequences  of  telling 
the  latter,  and  also  what  was  required  by  the  oath  which  he  had 
taken.  At  any  rate,  the  contrary  does  not  appear.  Of  course,  care 
must  be  taken  by  the  trial  judge,  especially  where,  as  in  this  case, 
the  question  is  one  of  life  or  death.  On  the  other  hand,  to  exclude 
from  the  witness  stand  one  who  shows  himself  capable  of  under- 
standing the  difference  between  truth  and  falsehood,  and  who  does 
not  appear  to  have  been  simply  taught  to  tell  a  story,  would  some- 
times result  in  staying  the  hand  of  justice. 

We  think  that  under  the  circumstances  of  this  case  the  disclosures 
on  the  voir  dire  were  sufficient  to  authorize  the  decision  that  the 
witness  was  competent,  and,  therefore,  there  was  no  error  in  admit- 
ting his  testimony.  These  being  the  only  questions  in  the  record, 
the  judgment  must  be  affirmed. 


Devises  and  Bequests  by  htfants. 
DAVIS  V.   BAUGH. 

I  Sneed  (Tenn.),  477. — 1853, 

ToTTEN,  J.  This  case  is  an  issue  devisavit  vel  non  on  a  writing 
that  purports  to  be  the  will  of  William  P.  North,  deceased.  He 
made  and  published  the  writing  as  his  will  when  only  eighteen  years 
of  age,  and  shortly  after  died.  It  was  held  to  be  a  valid  will,  as  to 
the  personal  estate,  and  Davis,  the  contestant,  appealed  in  error. 

The  error  assigned  is,  that  an  infant  under  twenty-one  years  of 
age  in  not  legally  competent  to  make  a  will.  It  is  to  be  observed 
that  we  have  no  statute  provision  on  this  subject.  We  must,  there- 
fore, recur  to  the  common  law  for  a  rule  of  decision.  There  is  some 
conflict  of  opinion  among  the  writers  upon  ancient  common  law,  on 
this  subject;  but  the  better  opinion  is,  and  so  it  has  long  been  held, 
that  an  infant  may  make  a  testament  of  chattels,  if  a  male,  at  the 
age  of  fourteen ;  and,  if  a  female,  at  the  age  of  twelve  years. 


CAPACITY    OF   INFANTS   TO    HOLD    OFFICE,  S'S 

Thus  Mr.  Kent:  "  Testaments  of  chattels  might,  at  common 
law,  be  made  by  infants  at  the  age  of  fourteen,  if  males;  and  twelve, 
if  females."  4  Kent's  Com.  506;  i  Will,  on  Ex.  15;  2  Bl.  Com. 
479;   I  Jarman  on  Wills,  28. 

It  is  true  that  this  rule,  derived  originally  from  the  civil  law,  is 
the  rule  of  the  English  ecclesiastical  courts  having  jurisdiction  of 
the  subject  of  wills  and  intestate's  estates.  And  their  rules  of  deci- 
sion upon  those  subjects  have  been  received  and  admitted  by  imme- 
morial usage  as  a  part  of  the  unwritten,  or  customary  law  of 
England;  recognized  and  sanctioned  in  the  common-law  courts  at 
Westminster,      i  Bl.  Com.  80;   i  Will,  on  Ex.  15. 

So  that  those  rules  of  decision  have  become  incorporated  into,  and 
form  a  part  of,  the  common  law  of  England,  which  as  a  system  of 
law  has  been  admitted  and  adopted  here,  so  far  as  was  consistent 
with  the  nature  and  genius  of  our  institutions. 

Hence,  in  testamentary  cases,  our  courts  constantly  recur  to  the 
reported  judgments  of  the  ecclesiastic  courts  in  similar  cases,  for 
rules  of  decision.  Thus,  it  has  been  held  that  two  witnesses  are 
necessary  to  prove  and  establish  a  will,  a  rule  derived  from  the 
ecclesiastical  law  on  this  subject.  More  v.  Steele,  10  Humph. 
Rep.  562. 

In  this  view,  and  for  these  reasons,  we  regard  the  rule  in  question 
as  a  part  of  the  common  law  in  force  and  use  in  this  state. 

Judgment  atifirmed.' 


Capacity  of  Infants  to  Hold  Office. 

MOORE  V.  GRAVES,  Jr. 
3  N.  H.  408.—  1826. 

Trespass  de  bonis  asportatis.  The  case  was  tried  here,  upon  the 
general  issue,  at  October  term,  1825,  when  it  appeared  in  evidence, 
that  one  John  McNeil,  having  sued  out  a  writ  against  one  Isaac 
Jones,  the  sheriff  of  this  county  deputed  the  plaintiff  to  serve  the 
same.  The  deputation  was  on  the  back  of  the  writ,  and  was  as 
follows: 

"  I  hereby  constitute  and  appoint  Jotham  Moore,  to  serve  and 
"  return  this  writ,  according  to  law. 

"  Witness  my  hand  and  seal,  this  nth  day  of  April,  1822,  at  the 
"risk  of  the  plaintiff.  "  B.  P.,  Sheriff." 

'  By  34  &  35  Henry  VIII.  Cap.  5, —  an  Act  for  the  explanation  of  the  Statute 
of  Wills, —  a  will  of  real  property  made  by  a  "  person  within  the  age  of  twenty- 
one  years  "  was  not  to  "be  taken  to  be  good  or  effectual  in  the  law." 


5l6  INFANCY. 

There  was  also  on  the  back  of  the  writ  a  certificate  as  follows: 
"  April    12,  1S22.      Then  Jothain  Moore  made  oath,  that  he  would 
"serve  and  return  this  writ,  according  to  law. 

"  J.  B.,  Justice  of  Peace." 

At  the  time  Moore  was  so  appointed,  and  when  he  served  and 
returned  the  said  writ,  he  was  an  infant,  under  the  age  of  twenty- 
one  years. 

Moore,  being  thus  deputed  by  virtue  of  the  said  writ,  attached 
the  goods  mentioned  in  the  plaintiff's  writ,  and  caused  the  same  to 
be  locked  up  in  a  store,  on  the  12th  of  April,  1822. 

On  the  i8th  April,  1822,  the  defendant,  being  a  creditor  of  the  said 
Isaac  Jones,  sued  out  a  writ  in  his  own  name  against  Jones,  which 
he  delivered  to  a  general  deputy  of  the  same  sheriff,  duly  deputed; 
and  after  being  notified  that  the  said  goods  have  been  attached,  as 
aforesaid,  the  said  Graves  and  the  said  general  deputy,  by  direction 
of  said  Graves,  broke  open  the  said  store  and  attached  the  said 
goods,  and  caused  them  to  be  removed,  by  virtue  of  the  said  writ  in 
favor  of  said  Graves. 

On  the  part  of  the  defendant,  it  was  objected  that  the  plaintiff, 
being  an  infant,  was  incapable  of  exercising  the  office  of  deputy 
sheriff;  that  the  deputation  and  oath  were  informal  and  void;  and 
that  the  plaintiff,  being  a  special  deputy,  the  defendant,  with  a  gen- 
eral deputy,  had  a  right  to  attach  and  remove  the  goods,  and  hold 
them  subject  to  the  attachment  made  by  the  plaintiff,  if  that  attach- 
ment was  legal.  But  a  verdict  was  taken,  by  consent,  for  the  plain- 
tiff, subject  to  the  opinion  of  the  court,  upon  the  foregoing  case. 

Richardson,  C.  J.  The  defendant  claims  a  new  trial  in  this 
case,  on  two  grounds.  In  the  first  place,  he  contends  that  the 
attachment  made  by  the  plaintiff,  was  void,  and,  therefore,  gave  him 
no  right  to  hold  the  goods.  In  the  second  place,  he  urges,  that, 
admitting  the  attachment  to  have  been  valid,  a  general  deputy  of 
the  sheriff  had  a  right  to  take  away  the  goods,  and  hold  them,  by 
virtue  of  other  legal  process,  against  the  same  debtor,  subject  to' 
the  attachment  made  by  the  plaintiff,  who  was  only  a  special  deputy. 

It  is  said  that  the  attachment  made  by  the  plaintiff  was  void,  for 
two  reasons;  ist,  because  the  plaintiff  was  an  infant,  and,  bylaw, 
incapable  of  exercising  the  office  of  a  deputy  sheriff;  and,  2dly, 
because  he  was  not  duly  commissioned  and  sworn  as  a  deputy. 

The  first  question,  then,  to  be  decided  is,  whether  the  plaintiff, 
being  an  infant,  was,  by  law,  capable  of  discharging  the  duties, 
which  he  was  in  this  instance  deputed  to  perform,  It  is  not  neces- 
sary, in  this  case,  to  decide  whether  he  was  capable  of  doing  all  the 


CAPACITY   OF   INFANTS   TO    HOLD    OFFICE.  517 

duties  of  a  general  deputy;  his  authority  being  special  and  limited, 
it  is  enough  for  this  case  to  decide  the  question,  whether  he  was, 
by  law,  capable  of  doing  the  particular  acts  which  his  commission 
authorized  him  to  perform. 

The  real  question,  then,  involved  in  this  point,  is  whether  an 
infant  is,  by  law,  capable  of  discharging  the  duties  of  a  deputy  of 
the  sheriff,  specially  deputed  to  serve  and  return  a  particular  writ 
of  attachment. 

There  are  provisions  in  our  constitutions  which  declare  persons 
of  certain  ages  incapable  of  holding  certain  offices.  These  provi- 
sions have  been  adopted,  because  it  has  been  generally  supposed  to 
be  contrary  to  sound  public  policy  to  commit  particular  offices  to  the 
inexperience  of  the  young,  or  to  the  decay  of  faculties  which  so 
frequently  attends  the  last  years  of  the  aged.  By  the  Constitution 
of  the  United  States,  no  person  can  be  president  who  has  not 
attained  the  age  of  thirty-five  years;  nor  a  senator,  who  is  under  the 
age  of  thirty  years;  nor  a  representative  in  congress,  until  the  age 
of  twenty-five  years.  And  by  the  Constitution  of  this  state  it  is 
provided  that  no  person  shall  be  capable  of  being  elected  a  senator, 
nor  be  eligible  to  the  office  of  governor,  who  is  not  of  the  age  of 
thirty  years.  It  is  also  further  declared  by  the  same  Constitution 
that  "  no  person  shall  hold  the  office  of  judge  of  any  court,  or  judge 
of  probate,  or  sheriff  of  any  county,  after  he  has  attained  the  age  of 
seventy  years." 

And  some  of  our  statutes  deny  to  persons  of  certain  ages  the 
exercise  of  particular  powers  and  privileges  which  are  granted  to 
others.  Thus,  by  the  statute  of  June  23,  1815,  the  right  of  voting 
in  any  public  town  meeting  in  any  matter  that  may  come  before  a 
town,  is  given  only  to  persons  of  the  age  of  twenty-one  years.  So, 
by  the  statute  of  July  2,  1822,  the  power  of  disposing  of  real  estate 
by  will  is  denied  to  infants;  and  it  seems,  from  the  language  of  that 
statute,  that  they  are  incapable  of  being  executors  or  adminis- 
trators. 

Nor  were  the  imbecility  and  inexperience  of  early  life  disregarded 
by  the  common  law,  for  it  seems  always  to  have  been  held  that  an 
infant  could  not  be  a  juror.  Coke,  Litt.,  157a;  Littleton,  sec.  259. 
So  he  could  not  be  an  attorney  of  a  court;  (Coke,  Litt.  128a),  nor 
administrator  of  an  estate;  (Lovelass,  5;  Godolphin,  102);  nor  could 
he  act  as  executor  until  he  arrived  at  the  age  of  seventeen  years. 
Lovelass,  161 ;  Godolphin,  103.  So  it  was  always  held  that  an  infant 
could  not  execute  the  office  of  a  judge.  Croke  Eliz.  636;  Scambler 
V.  Waters,  Coke  Litt.  3b.  and  note  15;  T,  Jones,  127;  2  Lev.  245. 
It  has  also  been  decided  that  an  infant  cbuld  not  hold  the  office 


5l8  INFANCY. 

of  clerk  of  a  court  where  it  was  part  of  the  duty  of  the  office  to 
receive  the  money  of  the  suitors.     5  B.  &  A.  81,  Claridge  v.  Evelyn. 

But,  notwithstanding  these  disabilities,  there  arc  many  things 
which  can  be  legally  done  by  an  infant.  He  is  made  by  statute 
liable  to  do  duty  in  the  militia  at  the  age  of  eighteen  years.  By 
the  common  law,  an  infant  was  capable  of  discharging  the  duties  of 
an  executor  at  the  age  of  seventeen  years.  5  Coke,  29,  Pi^of  s  Case. 
It  is  also  well  settled  that  females  of  the  age  of  twelve,  and  males 
at  the  age  of  fourteen  years,  may  dispose  of  personal  property  by 
will.     Bingham  on  Infancy,  77;   i  Pickering,  239,  Deane  v.  Littlefield. 

It  has  long  been  held  that  infants  were  capable  of  holding  certain 
ministerial  offices.  Cro.  Car.  555,  Young  v.  Foivler;  2  Roll.  Ab.  153; 
Com.  Dig.,  "  Officer,"  B.  3;  Cowper,  220,  Rex  v.  Carter;  Cro.  Car. 
279,  Young  v.  Stoell.  In  England,  the  office  of  sheriff  was  in  some 
counties  formerly  hereditary,  and  consequently  might  have  de- 
scended to  an  infant,  i  Bl.  Com.  339;  Cro.  Car.  556;  9  Coke,  97. 
So  an  infant  may  be,  it  seems,  a  captain  in  the  army.  8  D.  &  E. 
578,  Hands  v.  Slaney.  And  it  was  held  that  an  infant  might  be  an 
attorney  to  deliver  seizin,  because  the  act  was  merely  ministerial. 
Co.  Litt.  52a,  and  note  332.  So  it  was  anciently  holden  that  an 
infant  might  be  the  keeper  of  a  gaol;  and  the  statute  of  Westminster, 
2  (cap.  11),  was  construed  to  extend  to  an  infant  gaoler,  so  as  to 
charge  him  in  an  action  of  debt  for  an  escape  of  one  in  execution. 
Bingham  on  Infancy,  73,  108. 

Upon  a  thorough  examination  of  the  adjudged  cases  which  bear 
upon  the  question  we  are  now  considering,  we  are  satisfied  that  the 
principle  they  establish  is,  that  some  offices  can,  and  some  cannot, 
be  held  by  infants.  Offices  where  judgment  and  discretion  and 
experience  are  essentially  necessary  to  the  proper  discharge  of  the 
duties  they  impose  are  not  to  be  mtrusted  in  the  hands  of  infants. 
But  they  may  hold  offices  which  are  merely  ministerial  and  which 
require  nothing  more  than  skill  and  diligence. 

The  plaintiff  in  this  case  was  deputed  to  serve  and  return  a  writ. 
The  service  of  the  writ  required  an  arrest  of  the  body,  or  an  attach- 
ment of  the  goods  of  the  debtor.  The  return  required  nothing  more 
than  to  send  the  writ  to  the  court,  when  and  where  it  was  returnable, 
with  a  true  statement  upon  it  of  his  doings.  The  service  and 
return  seem,  therefore,  to  be  acts  as  merely  ministerial  as  any  that 
can  be  conceived. 

We  are  not  aware  that  the  appointment  of  an  infant  in  this 
instance  could  in  any  way  have  been  detrimental  to  the  public.  Had 
the  deputy,  by  virtue  of  the  writ,  arrested  the  body  of  a  stranger, 
or  taken  the  goods  of  a  third  person,  the  sheriff  might  have   been 


LIABILITY  OF  INFANT  FOR  ANTE-NUPTIAL  DEBTS  OF  WIFE.   519 

compelled  to  pay  all  damages  in  an  action  of  trespass.  3  Wils. 
309,  Saimderson  v.  Baker;  i  Mass.  Rep.  530,  Grinnel  v.  Phillips;  17 
Id.  244,  Campbell  v.  Phelps;  Doug.  40,  Ackworth  v.  Kempe;  2  W. 
Black.  832;  Hammond  N,  P.  82. 

Nor  was  the  debtor  without  ample  security  for  any  injury  he  might 
sustain  from  the  acts  or  from  the  negligence  of  the  deputy.  Noth- 
ing can  be  more  unquestionable  than  that  the  sheriff  stands  respon- 
sible for  his  deputies  in  both  these  respects. 

With  regard  to  the  deputy  himself,  there  seems  to  have  been 
nothing  in  the  nature  of  the  duties  he  was  deputed  to  perform 
which  subjected  him  to  hazards  to  which  an  infant  ought  not  to  be 
exposed.  There  was  no  greater  responsibility  in  the  discharge  of 
those  duties  than  what  is  every  day  thrown  upon  young  men,  under 
age,  in  the  employment  of  traders  and  mechanics,  and  in  various 
other  situations. 

For  these  reasons,  we  are  of  opinion  that  the  attachment  made 
by  the  plaintiff  cannot  be  held  to  be  void  on  the  ground  that  he  was 
incapable  of  holding  the  office  of  a  special  deputy  in  this  instance. 


Liability  of  an   Infant  for  Ante-Nuptial  Debts  of  His 

Wife. 

ROACH  &  McLean  v.  quick. 

9  Wend.  (N.  Y.)  238.— 1832. 

Demurrer  to  plea.  To  a  declaration  for  goods  sold  and  delivered 
to  the  wife  whilst  sole,  the  defendants  jointly  pleaded  that  at  the 
time  of  the  commencement  of  the  suit  the  husband  was  an  infant 
within  the  age  of  twenty-one  years,  to  wit,  etc. ;  to  which  plea  the 
plaintiff  demurred. 

By  the  court,  Nelson,  J.  As  an  incident  to  the  marriage  contract 
which  an  infant  is  competent  to  enter  into,  he  is  liable  to  pay  the 
debts  of  his  wife  contracted  by  her  before  marriage.  Prior  to  her 
marriage,  the  wife  was  responsible  for  such  debts,  and  unless  the 
liability  to  pay  them  attached  to  the  husband,  her  creditors  would 
be  remediless,  as  she  cannot  be  sued  alone,  separate  from  her  hus- 
band; and  if  she  could,  a  judgment  against  her  would  be  fruitless, 
as  all  her  estate  is  absolutely  or  qualifiedly  vested  in  her  husband. 
Reeve's  Dom.  Rel.  234;  Barnes,  95.  The  plea  in  this  case,  there- 
fore, is  bad,  and  the  plaintiffs  are  entitled  to  judgment;  the  defend- 
ants have  leave  to  amend  on  payment  of  costs. 


PART  IV. 

INSANITY. 


hisanity  and  Mental  Weakness. 

Lumpkin,  J.,  in  MADDOX  v.  SIMMONS. 

31  Ga.  512,  527.— 1860. 

I  ASSUME,  in  the  first  place,  that  to  establish  incapacity  in  a 
grantor,  he  must  be  shown  to  have  been,  at  the  time,  non  compos 
mentis,  in  the  legal  acceptation  of  that  term;  which  means,  not  a 
partial,  but  an  entire,  loss  of  understanding.  The  common  law  has 
not  drawn  any  discriminating  line  by  which  to  determine  how  great 
must  be  the  imbecility  of  mind  to  render  a  contract  void,  or  how 
much  intellect  must  remain  to  uphold  it.  Weakness  of  understand- 
ing is  not,  of  itself,  any  objection  to  the  validity  of  the  contract.  If 
a  man  be  legally  compos  mentis,  he  is  the  disposer  of  his  own  prop- 
erty, and  his  will  stands  for  the  reason  of  his  actions,  y^ackson  v. 
Calchuell,  11  Cowen,  207;  Odell  v.  Buck,  21  Wend.  142;  Stewart  v. 
Lispetiard,  26  Wend.  2()?>  et  seq.;  Clarke  x.  Fish,  1  Paige,  171;  Blan- 
chardv.  Nettle,  3  Denio,  37;  Osterkout w .  .Shoemaker,  Id.,  note;  Dean's 
Med.  Jur.  555  et  seq.  ;  2  Mad.  Ch.  Pr.  et  seq. 

To  establish  any  other  standard  of  intellect  or  information  beyond 
the  possession  of  reason,  in  its  lowest  degree,  as  in  itself  essential 
to  legal  capacity,  would,  as  said  by  Senator  Verplanck,  in  the  great 
case  already  cited,  i^Stctvarf  s  Ex'rs  v.  Lispenard,  26  Wend.  203), 
create  endless  uncertainty,  difiiculty  and  litigation;  would  shake  the 
security  of  property,  and  wrest  from  the  aged  and  infirm  that 
authority  over  their  earnings  and  savings,  which  is  often  their  best 
security  against  injury  and  neglect.  If  you  throw  aside  the  old  com- 
mon-law test  of  capacity,  then  proofs  of  wild  speculation  or  of 
extravagant  and  peculiar  opinions,  or  the  forgetfulness  or  prejudice 
of  old  age,  might  be  sufficient  to  shake  the  fairest  conveyance,  or 
impeach  the  most  equitable  will.  The  law,  therefore,  in  fixing  the 
standard  of  positive  legal  competency,  has  taken  a  low  standard  of 
capacity;  but  it  is  a  clear  and  definite  one,  and  therefore  wise  and 
safe.  It  holds,  in  the  language  of  a  late  English  commentator, 
(Shelford  on   Lunacy,  p.   39),    that  weak   minds  differ  from  strong 

[520] 


VOIDABILITY    OF   CONTRACTS.  52 1 

ones,  only  in  the  extent  and  power  of  their  faculties;  but  unless  they 
betray  a  total  want  of  understanding,  or  idiocy,  or  delusion,  they 
cannot  properly  be  considered  unsound. 


Voidability  of  Contracts  and  Conveyances. 

YOUNG  V,  STEVENS. 
48  N.  H.  133.— 1868. 

Assumpsit  on  promise  to  the  testatrix.  The  counts  relied  upon 
were  upon  account  annexed,  amounting  to  $695.50,  a  copy  of  which 
makes  part  of  the  case,  and  a  count  for  use  and  occupation. 

The  cause  was  tried  upon  the  general  issue,  and  from  the  opening 
the  plaintiff's  case  was,  that,  shortly  before  the  decease  of  the 
testatrix,  who  had  a  life  interest  in  a  small  farm  and  owned  certain 
stock  and  grain  thereon,  the  defendant  entered  upon  the  farm  and 
took  possession  of  it  together  with  such  stock  and  grain,  and  occu- 
pied the  house  upon  it,  the  testatrix  living  there  also  with  the  defend- 
ant and  his  family,  and  all  living  together;  that  the  defendant  did 
this  under  a  contract  in  writing  between  him  and  the  testatrix,  of 
May  4,  1865,  by  which  she  leased  to  him  the  farm  aforesaid  during 
her  life,  and  conveyed  to  him  the  neat  stock  and  sheep  absolutely,  the 
defendant  agreeing  on  his  part  to  support  the  testatrix  during  her 
life;  that  the  defendant  took  possession  of  the  farm  and  stock, 
claiming  a  right  to  them  by  virtue  of  this  contract,  and  continued  to 
hold  them  until  the  death  of  the  testatrix,  who  also  continued  to  live 
in  his  family  till  her  death. 

Whereas,  as  alleged  in  the  opening,  the  contract  aforesaid  was 
wholly  void  by  reason  of  the  mental  imbecility  of  the  testatrix,  which 
rendered  her  incapable  of  making  it,  and  upon  that  ground  the 
plaintiff  contended  that  no  title  passed  to  the  defendant  in  any  of 
the  property.  In  regard  to  some  of  the  property  not  embraced  in 
this  contract,  but  described  in  the  account  annexed,  the  plaintiff's 
case  was  that  defendant,  on  taking  possession  of  the  farm,  took  pos- 
session also  of  this  property,  and  converted  it  to  his  own  use,  there 
being  no  sale  of  it  to  him,  or  any  evidence  of  her  assent  to  his  taking 
it,  she  being,  in  fact,  most  of  the  time  sick. 

In  respect  to  the  charge  for  board  of  defendant  and  family,  the 
opening  was,  that  they  lived  in  the  house  above  describe]  dir-ing 
the  time  mentioned  in  the  account  annexed,  the  testatrix  Mvino;  with 
them,  the  defendant  using  in  the  family  the  grain,  pork  and  potatoes 


522  INSANITY. 

described  in  the  account,  without  any  contract  in  respect  to  them 
with  the  testatrix,  or  any  assent  or  dissent  by  her  to  such  use. 

Upon  the  case  as  offered  to  be  proved,  the  court  ordered  a  nonsuit, 
and  plaintiff  excepted.  The  questions  of  hiw  arising  on  this  case 
were  reserved  for  the  consideration  of  the  whole  court. 

Nes.mith,  J.  The  plaintiff,  under  his  first  count,  seeks  to  recover 
for  two  weeks'  board  in  1864,  as  furnished  by  his  testatrix  to  the 
defendant,  for  which  the  sum  of  $7  is  charged,  and  also  for  sundry 
articles  of  personal  property,  such  as  provisions,  etc.  Probably  some 
of  these  may  be  due,  and  may  be  recovered  under  plaintiff's  first 
count,  as  having  been  delivered  to  the  defendant  under  an  express 
or  implied  contract,  binding  the  defendant  to  pay  for  them. 

The  main  dispute  involved  in  the  case  arises  out  of  the  special 
contract  of  the  testatrix,  as  made  wnth  the  defendant  on  the  4th  day 
of  May,  1865.  It  is  understood  that,  under  this  contract,  the 
defendant  agreed  to  take  the  lands  in  which  the  said  Eliza  Young 
had  a  life  estate,  also  the  stock  on  her  farm,  and  to  support  the 
Said  Eliza  during  her  natural  life;  and  according  to  the  requirements 
of  said  contract,  the  defendant  now  claims  the  full  performance,  the 
said  Eliza  having  deceased.  On  the  other  hand,  the  plaintiff  claims 
that  no  title  passed  under  this  contract  to  defendant  by  reason  of 
the  incapacity  of  said  Eliza,  she  at  the  time  laboring  under  mental 
imbecility.  Wherefore,  the  plaintiff  claims  that  the  defendant 
should  pay  for  the  use  of  the  premises  enjoyed  by  him,  and  for 
the  value  of  the  stock  taken  under  the  written  contract,  and  for  the 
board  of  self  and  family  during  its  existence;  in  short,  that  the  whole 
of  said  written  contract  should  be  regarded  as  rescinded.  It  will  be 
seen  that  the  ruling  of  the  court  stands  upon  the  plaintiff's  own 
statement  of  his  case,  and  it  will  be  presumed  to  be  stated  as  strong 
in  his  favor  as  the  facts  will  justify. 

The  rules,  definitions  and  limitations,  as  laid  down  by  Judge  Bell, 
in  Dennett  w  Dennett,  44  N.  H.  531,  are  to  be  regarded  as  safe  for 
our  guidance,  as  applicable  to  the  subject  of  mental  imbecility  or 
insanity,  when  existing  in  either  party  to  executory  or  executed 
contracts.  Every  person  may  be  deemed  of  unsound  mind,  who  has 
lost  his  memory  and  understanding  by  reason  of  old  age,  sickness, 
or  other  accident,  so  as  to  render  him  incapable  of  transacting  his 
business,  and  of  managing  his  property. 

As  a  commentary  upon  this  comprehensive  general  rule,  we  may 
remark  that  the  common  law  seems  not  to  have  drawn  any  nice  dis- 
criminating line  by  which  to  determine  how  great  must  be  the  imbe- 
cility of  mind  to  render  a  contract  void,  or  how  much  intellect  must 
remain  to  uphold  it.     yackson  v.  King,  4  Cow.  216.     When  it  appears 


VUIDABILITY    OF    CONTRACTS.  523 

that  a  grantor  had  not  strength  of  mind  and  reason  sufficient  to 
understand  the  nature  and  consequences  of  his  act  in  making  a  deed, 
it  may  be  avoided  on  the  ground  of  insanity.  In  other  words,  a 
man,  by  the  bare  execution  of  a  written  instrument  does  not  make 
it  his  deed  if  at  the  time  he  was  so  weak  in  mind  as  to  be  incapable 
of  understanding  it  if  explained  to  him,  or  the  effect  of  the  act  he 
is  about  to  perform.  The  question,  then,  in  cases  where  incapacity 
to  contract  from  defect  of  mind  is  alleged,  is  not  whether  a  person's 
mind  is  impaired,  nor  whether  he  is  afflicted  by  any  particular  form 
of  insanity,  but  whether  the  powers  of  his  mind  have  been  so  far 
affected  by  his  disease  as  to  render  him  incapable  of  transacting 
business  like  that  in  question.  Weakness  of  understanding  is  not  of 
itself  any  objection  to  the  validity  of  a  contract,  if  the  capacity 
remains  to  see  things  in  their  true  relations,  and  to  form  correct 
conclusions.  The  doubtful  and  uncertain  point  at  which  the  disposing 
mind  disappears,  and  where  incapacity  begins,  can  be  ascertained 
only  by  an  examination  of  all  the  circumstances  of  each  particular 
case,  to  be  duly  weighed  and  considered  by  the  court  and  jury;  and 
in  determining  the  question,  the  common  sense  and  good  judgment 
of  this  tribunal  must  be  mainly  relied  on. 

The  familiar  rule  of  evidence  is  adopted  here  that  every  man  is 
presumed  to  be  sane  until  the  contrary  appears,  and  the  burden  of 
proof  is  on  the  party  who  asserts  the  want  of  capacity.  Pdtes  v. 
Bingham^  10  N.  H.  514.  Nor  is  there  any  doubt  as  to  the  rule  of 
practice  here,  which  is  that  insanity  may  be  either  pleaded  or  given 
in  evidence,  as  a  bar  to  an  action  founded  either  upon  an  executory 
or  executed  contract.  Burke  v.  Allen,  29  N.  H.  106;  Dennett  v. 
Dennett,  ante  ;  Leaver  \.  Phelps,  11  Pick.  304;  Rice  v.  Pect,  13  Johns. 
543;  Thompson,  v.  Leach,  3  Mod.  310.  In  England,  we  have  the 
recent  case  of  Moulton  and  Wife,  Admin  x,  v.  Camroux,  2  Excheq. 
500,  wherein  Chief  B.  Pollock  has  ably  investigated  the  question, 
when,  and  how  far  insanity  or  lunacy  may  be  an  answer  to  a  complete 
or  executed  contract,  and  under  what  circumstances  such  contract 
may  not  be  rescinded.  Pollock  says:  "  We  are  not  disposed  to  lay 
down  so  general  a  proposition  as  that  all  executed  contracts,  bona 
fide  entered  into,  must  be  taken  as  valid,  though  one  of  the  parties 
be  of  unsound  mind.  We  think,  however,  we  may  safely  conclude 
that  when  a  person,  apparently  of  sound  mind,  and  not  known  to  be 
otherwise,  enters  into  a  contract  for  the  purchase  of  property  which 
is  fair  and  bona  fide,  and  which  is  executed  and  completed,  and  the 
subject-matter  of  the  contract  has  been  paid  for  and  fully  enjoyed, 
and  cannot  be  restored,  so  as  to  put  the  parties  in  statu  quo,  such 
contract  cannot  be  afterwards  set  aside,  either  by  the  alleged  lunatic 


524  liNSAMlV. 

or  those  who  represent  him.  '  The  case  where  this  doctrine  was 
held  was  assumpsit,  brought  by  the  representatives  of  the  deceaseil 
person,  Thomas  Lee,  to  recover  back  certain  annuities  which  had 
been  purchased  by  said  Lee  in  his  lifetime,  without  the  knowledge 
on  the  part  of  the  officers  of  the  annuity  society  of  any  unsoundness 
of  mind  in  Lee,  the  trade  being  in  the  ordinary  course  of  the  affairs 
of  human  life,  and  fair  and  bona  fide  on  the  part  of  the  society.  It 
was  held  that,  after  the  death  of  the  lunatic,  his  personal  representa- 
tives could  not  recover  back  the  premiums  paid  for  the  annuitic... 

Justice  Story  remarks  that  courts  of  equity  will  watch  with  the 
most  jealous  care  every  attempt  to  deal  with  persons  non  compotes 
mentis,  and  asserts  that  where  a  contract  is  entered  into  with  good 
faith,  and  is  for  the  benefit  of  such  person,  as  for  necessaries,  courts 
of  equity  as  well  as  courts  of  law  will  uphold  it.  And  so,  if  a  pur- 
chase is  made  in  good  faith,  without  any  knowledge  of  the  incapacity, 
and  no  advantage  has  been  taken  of  the  party,  courts  of  equity  will 
not  interfere  to  set  the  contracts  aside,  if  injustice  will  thereby  be 
done  to  the  other  side,  and  the  parties  cannot  be  placed  in  statu  quo, 
as  before  the  purchase.  In  this  way,  as  in  the  cise  of  infants,  this 
class  of  persons  are  protected.  But  the  rule  of  law  is  used,  as  it  was 
designed,  for  a  shield.  It  is  not  allowed  to  work  a  fraud  and  injustice 
to  others,  i  Story's  Equity,  sec.  228,  and  cases  in  note;  Neill  v. 
Morley,  9  Vesey,  478;  2  Kent's  Com.  240;  Sprague  v.  Duell,  11 
Paige,  Chanc.  480;  Lootnis  v.  Spencer,  2  Paige,  Chanc.  153;  Baxter  v. 
Earl  of  Portsmouth,  5  B.  &  C.  170. 

Upon  the  grounds  and  reasons  suggested  in  the  aforesaid  cases, 
the  plaintiff  will  not  be  permitted  to  rescind  the  contract  of  his  testa- 
trix without  showing  fraud,  undue  advantage  or  imposition  in  the 
defendant;  for  the  labor  and  services  of  the  defendant  have  now 
largely  entered  into  the  contract,  and  they  cannot  be  restored  to 
him,  or  compensation  as  an  equivalent  be  easily  made  therefor. 
The  doctrine  is  well  established  that  no  contract  can  be  rescinded 
unless  both  can  be  restored  to  the  condition  in  which  they  were 
before  the  contract  was  made.  If,  therefore,  one  of  the  parties  has 
derived  an  advantage  from  the  performance  of  the  contract,  he  can- 
not hold  this,  and  consider  the  contract  as  rescinded,  but  must  do  all 
that  the  contract  obliges  him  to  do,  and,  in  such  cases,  seek  his 
remedy  in  damages.  2  Parsons  on  Contracts,  192;  Hunt\.  Silk,  5 
East.  449;  Hilliard  on  Sales,  308,  377;  Poor  v.  Woodward,  25  Vt. 
445;  Miner  y.  Bradley,  22  Pick.  458;  Stevefis  v.  Gushing,  1  N.  H.  17; 
Weeks  V.  Robie,  42  N.  H.  316,  and  cases  cited. 

But  even  assuming  the  contract  to  be  void  in  the  case  before  us  by 
reason  of  the  mental   imbecility  of  the   testatrix  to  the  extent   as 


VOIDABILITY    OF    CONTRACTS.  525 

alleged  by  plaintiff's  counsel,  then  what  will  be  the  legal  result? 
In  such  case  Greenleaf  says:  "  The  executed  contract  of  a  person, 
alleged  to  be  non  compos^  is  to  be  regarded  very  much  like  that  of 
an  infant,  and  that,  therefore,  where  goods  have  been  supplied  to 
a  party,  which  were  necessaries  or  were  suitable  to  his  or  her  station 
or  employment  in  life,  and  which  were  furnished  under  circumstances 
evincing  that  no  advantage  of  his  or  her  mental  infirmity  was 
attempted  to  be  taken,  and  which  have  been  enjoyed  by  such  party, 
then  he  or  she  is  liable  in  law  as  well  as  in  equity  for  the  value  of 
the  goods."  2  Greenleaf's  Ev.  369,  and  cases  in  notes;  3  Car.  & 
Payne,  30;  2  Car.  &  Payne,  17S;  Chitty  on  Contracts,  108;  Story 
on  Contracts,  sees.  23,  24;  Kendall  v.  May,  10  Allen,  62.  The  latter 
case  in  Massachusetts  shows  what  may  be  regarded  as  necessaries  for 
a  wealthy  insane  person,  and  is  interesting  in  some  of  its  illustrations. 
In  McCrillisv.  Bartldt,  8  N.  H.  569,  it  has  been  settled,  that,  although 
the  statute  may  avoid  the  contracts  of  spendthrifts  for  their  pro- 
tection, yet,  at  the  same  time,  it  does  not  avoid  their  implied  cor.- 
tracts  or  liabilities  for  necessaries.  In  this  case,  the  defendant  had 
furnished  his  own  personal  services  and  pecuniary  aid  to  the  spend- 
thrift to  resist  the  appointment  of  a  guardian  over  him,  upon  prob- 
able grounds  of  success.  The  court  held  that  such  money  and  aid 
might  be  considered  as  necessaries,  as  the  spendthrift  might  resist 
the  appointment  of  a  guardian. 

From  the  aforesaid  legal  authorities  there  is  no  doubt  that  the 
defendant  is  entitled  to  claim  under  his  written  contract  compensa- 
tion for  any  and  all  actual  benefits  rendered  to  the  testatrix  or  her 
estate,  using  the  term  necessaries  in  its  liberal  sense.  And  on  a  fair 
construction  of  the  case  before  us,  and  a  review  of  the  authorities 
bearing  on  this  subject,  we  come  to  the  conclusion  that  there  is 
nothing  stated  in  plaintiff's  case  indicative  of  any  want  of  good  faith 
on  the  part  of  the  defendant,  nothing  tending  to  show  that  he  has 
practiced  any  fraud,  artifice  or  imposition  upon  plaintiff's  testatrix 
in  procuring  the  contract.  There  is  nothing  to  show  that  defendant 
had  knowledge  of  any  mental  imbecility  of  the  testatrix,  provided 
she  actually  had  such  infirmity,  and  it  therefore  seems  to  us,  that, 
so  far  as  relates  to  the  inception  of  the  written  contract,  and  the 
things  done  under  it,  the  plaintiff  cannot  sustain  this  action,  and 
that  the  nonsuit  must  stand.  As  to  any  claim  outside  of  the  written 
contract,  including  board  and  provisions,  the  plaintiff  can  proceed 
for  whatever  may  be  due. 


526  INSANITY. 

HELEN  S.  MERRITT  and  GRACE  L.  MERRITT  7'.  JOHN 
MERRITT,  AS  Exi-xuroR  of  and  Truspkk  under  ihk 
Will  of  Hannafi  B.  MLRRFrF,  Deceased,  Impleaded 
^\I^ll  OriiERs. 

43  App.  niv.  (N.  Y.)  68.  —1899. 

This  action  was  brought  to  foreclose  a  mortgage  executed  in  the 
name  of  Hannah  B.  Mcrritt,  now  deceased,  by  George  Merritt,  her 
attorney  in  fact.  The  mortgagee,  John  Post,  assigned  the  bond  and 
mortgage  to  the  plaintiffs.  The  defence  was  that  at  the  time  of  the 
execution  of  the  mortgage  Hannah  B.  Merritt  was  non  compos  fnentis 
and  that  she  received  no  consideration  therefor. 

Barrett,  J.  What  we  held,  when  this  case  was  before  us  upon 
the  former  appeal,  was,  as  correctly  stated  in  the  head-note,  that 
"  the  authority  of  an  agent  acting  under  a  power  of  attorney  ceases 
or  is  suspended  by  the  insanity  of  his  principal;  and  where  the  fact 
of  such  insanity  is  known,  both  to  the  agent  and  to  the  party  dealing 
with  him,  the  contract  entered  into  by  the  agent  on  behalf  of  his 
principal  is  not  binding  upon  the  latter."  This  precise  proposition 
was  all  that  the  exceptions  contained  in  the  record  then  called  upon 
us  to  decide.  A  different  question  is  presented  upon  this  appeal. 
Upon  the  second  trial,  now  under  review,  the  plaintiffs  rested,  as 
they  did  before,  upon  proof  of  the  power  of  attorney  from  Mrs. 
Hannah  B.  Merritt  to  her  son,  George  Merritt,  of  the  bond  and 
mortgage  executed  by  the  latter  as  such  attorney  to  William  Post, 
and  of  the  assignment  of  the  bond  and  mortgage  by  Post  to  the 
plaintiffs.  It  is  not  disputed  that  upon  this  proof  the  plaintiffs  were 
prima  facie  entitled  to  a  judgment  of  foreclosure  and  sale  as  prayed 
for.  The  defendant  John  Merritt,  as  executor  and  trustee  under 
Mrs.  Merritt's  will,  then  proceeded  with  his  defence.  He  gave  evi- 
dence tending  to  show  that,  at  the  time  when  the  bond  and  mortgage 
were  executed,  Mrs.  Merritt  was  non  compos  mentis.  Before  he  had 
completed  his  proofs  on  this  head,  the  learned  trial  justice  asked 
his  counsel  whether  he  intended  to  offer  evidence  showing  knowledge 
on  Mr.  Post's  part  of  Mrs.  Merritt's  insanity  at  the  time  he  took  the 
bond  and  mortgage.  The  counsel's  reply  was  in  the  negative. 
Thereupon  the  court  held  that  Mrs.  Merritt's  insanity,  standing 
alone,  was  no  defence  to  the  action,  and  that  the  defendant  was 
bound  to  prove  the  additional  fact  that  Post  knew  of  her  insanity, 
or  had  reason  to  believe  that  she  was  insane,  when  he  took  the  bond 
and  mortgage.  Acting  upon  this  view,  the  learned  justice  declined 
to  pass  upon  the  question  of  Mrs.  Merritt's  sanity,  and  at  once  gave 


VOIDABIMTY    OF    CONTRACTS.  52; 

judgment  for  the  plaintiffs.  In  his  decision  he  frankly  and  fairly 
states  that  "the  defendant  did  not  complete  his  proof  as  to  the 
mental  condition  of  Hannah  B.  Merritt,  and  I  make  no  decision  as 
to  what  her  mental  condition  was  at  the  time  of  the  execution  of  the 
bond  and  mortgage  in  suit." 

We  think  that,  under  the  authorities  in  this  state,  this  was  an 
inaccurate  view  of  the  burden  of  proof.  It  was  seemingly  in  accord- 
ance with  the  rule  in  England  {Campbell  v.  Hooper,  3  Smale  &  G. 
i53)>  where  Vice-Chancellor  Stuart,  in  a  similar  case,  said  that,  you 
must  show  that  the  contracting  party,  claiming  under  the  contract 
(there,  as  here,  a  mortgage),  knew  of  the  lunacy  of  the  other  party 
and  took  advantage  of  it,  before  you  can  deprive  him  of  the  right  to 
recover  under  the  contract  at  law,  and  it  would  be  very  strange  if  a 
court  of  equity  in  dealing  with  contracts  were  to  proceed  upon  a 
different  principle.  So,  in  Imperial  Loan  Co.  v.  Stone,  61  L.  J.  (Q. 
B.)  449,  it  was  held  that  the  burden  of  proving  both  the  insanity 
and  the  knowledge  of  it  by  the  other  contracting  party  lies  upon  the 
party  seeking  to  avoid  the  contract. 

In  this  state,  however,  the  rule  is  the  other  way.  Whatever 
question  there  may  be  as  to  deeds,'  it  is  well  settled  that  a  mortgage 
executed  by  a  lunatic  is  voidable  only.  {Ingraham  v.  Baldwin,  9  N. 
Y.  45.)  Being  voidable  at  the  election  of  the  lunatic's  personal 
representatives,  the  latter  may  in  the  first  instance  rest  upon  proof 
of  the  lunacy,  and  it  thereupon  becomes  incumbent  upon  the  mort- 
gagee or  his  assignees  "to  show  the  facts  necessary  in  equity  to 
sustain"  the  instrument.  Goodyear  v.  Adatns,  24  N.  Y.  St.  Repr. 
31;  aff'd,  119  N.  Y.  650;  Riggs  v.  American  Tract  Society,  84  Id.  330; 
Hicks  V,  Marshall,  8  Hun,  327;  Johnston  v.  Stone,  35  Id.  380,  383. 
Our  rule  seems  to  be  the  more  reasonable  one.  It  is  quite  enough 
to  put  upon  the  lunatic's  representatives  the  burden  of  proving  the 
lunacy.  That  burden  is  by  no  means  light.  They  must  show  that 
their  testator,  when  he  executed  the  instrument,  was  "so  deprived 
of  his  mental  faculties  as  to  be  wholly,  absolutely  and  completely 
unable  to  understand  or  comprehend  the  nature  of  the  transaction." 
Aldrich  v.  Bailey,  132  N.  Y.  87,  88.  When  they  have  proved  this, 
the  party  claiming  under  the  instrument  may  well  be  called  upon  to 
show  his  good  faith  and  ignorance  of  the  insanity.  If  the  mortgagor 
was  insane  when  he  signed  the  mortgage,  the  mortgagee's  rights 
under  the  instrument  are  wot  prima  facie  sustainable.  Equity,  how- 
ever, will  sustain  them  and  enforce  the  contract  in  a  proper  case; 
but  the  least  that  can  then  be  required  of  the  mortgagee  is  that  he 

'  That  a  deed  is  voidable  and  not  void,  see  Blinn  v,  Schwarz,  \'ji  N.  Y.  252. 


528  INSAMIV. 

point  out  and  establish  the  grounds  upon  which  equity  should  lend 
him  its  aid.  What  are  sufficient  grounds  for  the  enforcement  of  such 
contracts  in  equity  has  been  rep-atedly  pointed  out  in  the  cases. 
Mutual  Life  Ins.  Co.  v.  Hunt,  79  N.  Y.  541;  Hicks  v.  Marshall,  supra; 
Riggs  V.  American  Tract  Society,  supra;  Johnston  v.  Stone,  supra. 

The  case  first  cited  is  almost  directly  in  point.  There,  as  here, 
the  action  was  for  the  foreclosure  of  a  mortgage  executed  by  the 
alleged  lunatic.  It  was  defended  by  the  committee  of  the  lunatic. 
The  Special  Term  found  as  a  fact  that  the  alleged  lunatic  was  of 
sound  mind  at  the  time  when  she  executed  the  bond  and  mortgage. 
The  General  Term  {Mutual  Life  Lns.  Co.  v.  Hunt,  14  Hun,  169), 
"conceding  without  now  deciding"  that  the  finding  was  erroneous, 
held  that  the  judgment  of  foreclosure  should  be  sustained  upon  the 
ground  that,  inasmuch  as  the  bond  and  mortgage  were  given  for  a 
full,  valuable  consideration,  without  knowledge  on  the  mortgagee's 
part  of  the  insanity,  every  principle  of  justice  required  that  it  should 
be  sustained.  "  It  would,"  said  the  court,  "  be  derogatory  to  the  law, 
if,  after  obtaining  the  money  from  the  plaintiff  and  using  it  for  her 
own  benefit,  she  should  now  be  allowed  to  defeat  the  securities  which 
she  gave  for  the  repayment."  This  doctrine  was  sustained  by  the 
Court  of  Appeals  "both  upon  principle  and  authority ;"  and  Judge 
Danforth  there  quoted  with  approval  the  following  language  of  the 
chancellor  in  Elliott  v.  Lnce,  7  De  G.,  M.  &  G.  (56  Eng.  Ch.)  487: 
"The  principle  of  that  case  {Molton  v.  Catnroux,  2  Exch.  [Welsby, 
H.  &  G.  487];  aff'd  in  error,  4  Id.  17)  was  very  sound,  viz.,  that  an 
executed  contract,  when  parties  have  been  dealing  fairly,  and  in 
ignorance  of  the  lunacy,  shall  not  afterwards  be  set  aside,  and  a  con- 
trary doctrine  would  render  all  ordinary  dealings  between  man  and 
man  unsafe."  (See,  also,  the  many  cases  to  the  same  effect  in  this 
and  other  states  cited  by  Judge  Danforth.) 

The  same  rule  was  referred  to  with  approval  in  Riggs  v.  American 
Tract  Society  {supra),  where  Judge  Danforth,  again  writing  for  the 
Court  of  Appeals,  observed :  "  It  is  said,  however,  and  I  think  justly, 
by  the  learned  counsel  for  the  defendant,  that  when  made  in  good 
faith,  for  the  benefit  of  the  lunatic,  without  notice  of  incapacity,  and 
so  far  performed  that  if  rescinded  the  party  executing  cannot  be 
placed  in  statu  quo,  the  contract  shall  stand." 

So  in  Carter  v.  Beckwith,  128  N.  Y.  321,  Andrews,  J.,  said:  "The 
courts  do  enforce  in  some  cases,  on  equitable  grounds,  the  acts  and 
contracts  of  lunatics  made  before  the  lunacy  has  been  formally 
established,  where  the  other  party  has  acted  in  good  faith,  without 
notice."  (Citing  in  support  of  the  proposition  the  Mutual  Life  Case 
79  N.  Y.  541.) 


VOIDABILITY    OF    CONTRACTS.  529 

The  rule  laid  down  in  these  cases  is  not  affected  by  the  incident 
that  the  alleged  lunatic  in  the  case  at  bar  acted  through  an  agent. 
The  equities  between  the-  original  parties  must  still  determine  the 
question  of  enforcement.  In  his  opinion  upon  the  former  appeal, 
Justice  Rumsey  thus  summed  up  the  rule  on  that  head:  "It  must 
be  held  that  when  one  undertakes  to  deal  with  an  agent  having  a 
written  power  of  attorney,  he,  equally  with  an  agent,  knowing  of  the 
insanity  of  the  principal,  that  the  transaction  thus  made  has  no  more 
weight  than  if  the  transaction  had  been  directly  with  the  insane  prin- 
cipal himself."     We  may  add  that  it  has  no  less  weight. 

In  the  case  from  which  Justice  Rumsey  so  copiously  quotes  [Davis 
V.  Lane,  10  N.  H.  156)  Chief  Justice  Parker  also  said  that  "  The  act 
of  the  agent  in  the  execution  of  the  power,  however,  may  not  in 
all  cases  be  avoided  on  account  of  the  incapacity.  If  the  principal 
has  enabled  the  agent  to  hold  himself  out  as  having  authority,  by  a 
written  letter  of  attorney,  or  by  a  previous  employment,  and  the 
incapacity  of  the  principal  is  not  known  to  those  who  deal  with  the 
agent,  within  the  scope  of  the  authority  he  appears  to  possess, 
the  transaction  may  be  held  valid,  and  binding  upon  the  principal. 
Such  case  forms  an  exception  to  the  rule,  and  the  principal  and  those 
claiming  under  him  may  be  precluded  from  setting  up  his  insanity 
as  a  revocation,  because  he  had  given  the  agent  power  to  hold  him- 
self out  as  having  authority,  and  because  the  other  party  had  acted 
upon  the  faith  of  it,  and  in  ignorance  of  any  termination  of  it." 

The  same  limitation  upon  the  rule  of  revocation  or  suspension 
resulting  from  the  insanity  of  the  principal  was  laid  down  in  Mat- 
ihiessen  &=  IV.  defining  Co.  v.  McMahon  s  Adm'r,  38  N.  J.  L.  536; 
Hill  V.  -Day,  34  N.  J.  Eq.  150,  and  Drew  v.  Nunn,  L.  R.  (4  Q.  B. 
Div.),  661.  In  Hill  y.Dayxt  was  held  that  "Where  a  principal 
becomes  insane  after  appointing  an  agent,  the  principal's  insanity 
operates,  per  se,  as  a  revocation  or  suspension  of  the  agent's  author- 
ity, except  *  *  *  where  a  consideration  of  value  is  given  by  a 
third  party,  trusting  to  an  apparent  authority  and  in  ignorance  of 
the  principal's  incapacity." 

In  Drew  v.  Nunn  the  defendant's  wife  had  authority  to  pledge  his 
credit  for  goods.  It  was  held  that  goods  furnished  to  her,  while  he 
was  insane,  by  a  tradesman  acting  in  ignorance  of  the  insanity,  might 
be  recovered  for.  Lord  Justice  Brett  stated  the  ground  of  the 
decision  as  follows:  "The  principal  is  bound,  although  he  retracts 
the  agent's  authority,  if  he  has  not  given  notice  and  the  latter  wrong- 
fully enters  into  a  contract  on  his  behalf.  The  defendant  became 
insane  and  was  unable  to  withdraw  the  authority  which  he  had  con- 
ferred upon  his  wife;  he  may  be  an  innocent  sufferer  by  her  conduct, 
[Domestic  Relations  —  34.] 


530  INSANITY. 

but  the  plaintiff,  who  dealt  with  her  bona  fide,  is  also  innocent;  and 
where  one  of  two  persons,  both  innocent,  must  suffer  by  the  wrong- 
ful act  of  a  third  person,  that  person  making  the  representation 
which,  as  between  the  two,  was  the  original  cause  of  the  mischief, 
must  be  the  sufferer  and  must  bear  the  loss." 

If  the  contract  was  thus  enforceable  in  a  case  where  the  agent 
obtained  goods  from  the  tradesman  for  her  own  benefit  upon  the 
faith  of  her  apparent  authority,  a  fortiori  is  it  enforceable  where  the 
contract  is  made  directly  for  the  benefit  of  the  lunatic  to  relieve  his 
property  from  a  lien  thereon  or  to  swell  his  estate. 

We  have  thus  gone  over  the  various  features  of  this  case  more 
fully,  perhaps,  than  was  essential  to  the  decision  of  the  present 
appeal.  We  have  done  this  to  correct  any  possible  misapprehension 
upon  another  trial  of  the  scope  of  our  previous  decision.  Upon  the 
first  trial  all  the  defendant's  evidence  in  support  of  his  defence  was 
excluded.  That  evidence  apparently  embraced  notice  of  the  insanity 
as  well  as  of  the  insanity  itself.  The  precise  question,  therefore, 
was  whether  the  insanity,  plus  the  notice,  constituted  a  defence. 
We  held  that  it  did.  We  were  not  called  upon  to  decide  whether 
the  insanity,  minus  the  notice,  constituted, /rm<z/d!«V,  a  defence. 
The  defendant  clearly  had  a  right  to  prove  notice  of  the  insanity,  but 
we  did  not  hold  that  he  was  bound  to  do  so.  If  his  testimony  suffi- 
ciently established  Mrs.  Merritt's  insanity  within  the  definition  for- 
mulated in  Aldrich  v.  Bailey  {supra),  he  was,  in  our  judgment,  then 
and  now  entitled  to  rest;  and,  if  his  testimony  on  that  head  was  not 
balanced  by  testimony  subsequently  adduced  by  the  plaintiffs,  he 
was  entitled  to  a  finding  to  that  effect.  If,  upon  all  the  testimony 
adduced  by  both  sides,  the  court  had  found  itself  unable  to  make 
such  a  finding,  all  other  grounds  of  equity  would  have  disappeared, 
and  the  plaintiffs  would  have  been  entitled  to  judgment.  If,  how- 
ever, the  court  had  found  the  fact  of  insanity,  then  the  equitable 
considerations  to  which  we  have  referred  would  have  supervened 
and  have  become  entitled  to  consideration. 

The  plaintiffs  did  not  prove  —  indeed  were  not  called  upon  to 
prove  —  the  facts  upon  which  such  considerations  would  have 
become  material,  for  the  reason'that  the  court,  as  we  have  seen,  gave 
them  judgment  precipitately  upon  an  erroneous  view  of  the  burden 
of  proof. 

It  is  said  that  there  is  evidence  that  the  plaintiffs,  as  Mr.  Post's 
assignees,  had  no  ice  of  Mrs.  Merritt's  insanity.  But  the  real  ques- 
tion on  that  head  relates  to  the  transaction  with  Mr.  Post.  If  he 
was  entitled,  owing  to  the  absence  of  notice  and  the  advance  of  the 
fuil  sum  of  $25,000,  which,  as  is   said,   went  to   pay  off  an   existing 


VOIDABILITY   OF   CONTRACTS.  53 1 

mortgage  upon  Mrs.  Merritt's  property,  to  enforce  the  security,  his 
assignment  to  the  plaintiffs  carried  the  same  right. 

Our  conclusion  is  that  the  defendant  should  have  been  permitted 
to  complete  his  proof  of  insanity,  with  the  right  on  the  plaintiff's 
part  thereupon  to  put  in  counterproofs  of  sanity,  and  also  to  prove 
any  facts  which  would  have  entitled  Mr.  Post  equitably  to  enforce 
the  mortgage  notwithstanding  Mrs.  Merritt's  insanity. 

The  judgment  should  be  reversed  and  a  new  trial  ordered,  with 
costs  to  the  appellant  to  abide  the  event. 

Van  Brunt,  P.  J.,  Patterson,  Ingraham  and  McLaughlin,  JJ., 
concurred. 

Judgment  reversed,  new  trial  ordered,  costs  to  appellant  to  abide 
event. 


Prentice,  J.,  in  COBURN  v.  RAYMOND. 

76  Conn.  484.  —  1904. 

The  contracts  and  conveyances  of  persons  non  compos  mentis,  when 
not  under  guardianship,  are  voidable,  and  not  void.  Wait  v.  Max- 
well, 5  Pick.  217,  16  Am.  Dec.  391;  Eaton  v.  Eaton,  37  N.  J.  Law, 
108,  18  Am.  Rep.  716;  Ingraham  v.  Baldivin,  9  N.  Y.  45;  Hovey  v. 
Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Scatilan  v.  Cobb,  85  111.  296; 
Freed  w.  Brown,  55  Ind.  310. 

The  authorities  differ  as  to  the  conditions  under  which,  as  be- 
tween the  parties,  executed  contracts  or  conveyances  voidable 
for  the  cause  stated  may  be  avoided  in  equity.  There  are  cases 
which  hold  that  restitution  of  the  consideration  received  is  not 
one  of  the  conditions.  Gibson  v.  Soper,  6  Gray,  279,  66  Am. 
Dec.  414;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Nichol 
V.  Thomas,  $2^  Ind.  42;  Crawford  v.  Scovell,  94  Pa.  48,  39  Am. 
Rep.  766.  Much  the  greater  number  of  cases,  however,  hold  a 
contrary  doctrine,  and  support  the  propostion  that  a  deed  can- 
not be  set  aside  on  the  ground  of  the  grantor's  incompetency 
where  the  grantee  acted  in  ignorance  of  the  incompetency,  and  fairly 
and  in  good  faith,  unless  the  consideration  received  be  refunded,  or 
the  grantee  restored  to  his  original  position,  and  injustice  thus 
avoided.  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am.  Rep.  716; 
Lincoln  v.  Buckmaster,  32  Vt.  652;  Scanlan  v.  Cobb,  85  111.  296;  Rusk 
V.  Fenton,  14  Bush,  490,  29  Am.  Rep.  413;  Young  v.  Stevens,  48  N. 
H.  133.  2  Am.  Rep.  202,  97  Am.  Dec.  592;  Boyer  v.  Berryman,  123 
Ind.  451,  24  N.  E.  249;  Ashcraft  v.  De  Armond,  44  Iowa,  229;  Grib- 
ken  V.  Maxwell,  34   Kan.  8,    7    Pac.  584,  55    Am.  Rep.  233;  More  v. 


532  INSANITY. 

Calkins,  85  Cal.  177,  24  Pac.  729;  Riggan  v.  Green,  80  N.  C.  236,  30 
Am.  Rep.  77;  Pea/son  v.  Cox,  71  Tex.  246,  9  S.  W.  124.  10  Am.  St. 
Rep.  740.  The  English  cases  give  their  unqualified  support  to  the 
rule  last  stated.  S/ic/by  v.  Jackson,  6  Beavan,  192,  200;  N^eillw.  Morley, 
9  Ves.  Jr.  478;  Molton  v.  Camroux,  2  E.xch.  487;  Campbell  v.  Hooper, 
3  Sm.  &  Gift.  153.  See  also  2  Pomeroy's  Equity  Jurisp.  §  946;  i  Story's 
Equity  Jurisp.  §§  227,  228;  i  Devlin  on  Deeds,  §  76.  The  first  case  to 
assert  the  doctrine  that  there  might  be  a  rescission  without  restora- 
tion we  believe  to  have  been  Gibson  v.  Soper,  6  Gray,  279,  66  Am. 
Dec.  414.  The  judge  who  wrote  the  opinion  of  the  court  found  no 
little  difficulty  in  harmonizing  its  views  with  the  opinion  rendered 
by  Chief  Justice  Shaw  in  the  then  recent  case  of  Arnold  \.  Richmond 
Iromvorks,  i  Gray,  434,  wherein  a  contrary  doctrine  was  stated  in 
plainest  terms.  The  decision  in  Hovey  v.  Hobson,  53  Me.  451,  89  Am. 
Dec  705,  followed  about  ten  years  later,  and  adopted  the  views  of 
the  Massachusetts  case.  These  two  cases  contain  all  that  has  been 
or  can  be  said  in  favor  of  the  position  assumed.  The  reasoning  of 
the  court  is  grounded  upon  the  watchful  concern  which  equity  main- 
tains, and  ought  to  maintain,  over  those  who  are  incapable  of  man- 
aging their  affairs.  The  law,  it  is  said,  makes  their  very  incapacity 
their  shield,  so  that  in  their  weakness  they  find  their  protection. 
An  analogy  is  drawn  between  infants  and  persons  non  compos  mentis, 
and  it  is  said  that  the  law  intends  that  he  who  deals  with  either  shall 
do  so  at  his  peril.  Pursuing  the  assumed  analogy,  the  proposition 
is  laid  down  that  the  right  of  the  insane  to  avoid  their  contracts,  like 
that  of  infants,  is  absolute  and  paramount,  and  superior  to  all  equi- 
ties of  other  persons,  however  far  removed  in  the  chain  of  title. 
The  argument  is  that,  if  restitution  was  required  as  a  condition 
precedent  to  cancellation,  that  might  be  indirectly  accomplished 
which  the  law  does  not  permit,  and  the  great  purpose  of  the  law  in 
securing  the  protection  of  those  who  cannot  protect  themselves  be 
thus  defeated.  The  answer  to  this  argument  is  obvious.  It  sees  only 
the  rights  and  interests  of  one  party,  and  makes  them  paramount 
over  all  other  considerations.  A  proceeding  to  set  aside  an  incom- 
petent's conveyance  is  one  in  equity.  The  powers  invoked  are 
equitable,  and  call  for  the  exercise  of  the  broadest  equity.  2  Story's 
Equity  Jurisp.  (12th  ed.)  §  i365d.  When  the  case  involves  an  inno- 
cent, bona  ^de  grantee,  the  court  has  before  it  two  innocent  parties, 
between  whom  it  is  in  duty  bound  to  do  equity  to  the  best  of  its 
ability.  It  has  no  right  to  shut  its  ears  to  the  claims  of  either  party. 
To  say  that  one,  however  innocent  he  may  be,  and  however  fair  his 
dealings,  who  chances  to  deal  with  an  incompetent,  does  so  at  his 
peril,  and  can  have  no  consideration  in  a  court  of  equity  when  he  is 


VOIDABILITY   OF   CONTRACTS.  533 

about  to  be  deprived  of  both  his  property  and  the  consideration  paid 
for  it,  is  to  hold  a  harsh  doctrine,  which  might  easily  transform  the 
incompetent's  shield  into  a  sword.  Cases  of  this  character  furnish 
no  exception  to  the  maxim  that  he  who  seeks  equity  must  do  equity, 
so  that  if,  on  the  whole  case,  it  would  be  inequitable  to  set  aside  a 
conveyance,  there  is  no  inexorable  rule  that  it  must  be  done  because, 
perchance,  the  grantor  was  deficient  in  mental  capacity.  2  Story's 
Equity  Juris.  §  i365d.  The  argument  under  review  also  forgets 
the  provisions  which  are  made  by  statute  for  the  protection  of  the 
property  interests  of  incapable  persons,  and  the  prompt  redress  of 
their  wrongs.  It  is  made  easy  to  put  such  persons  beyond  the  power 
of  contracting  or  disposing  of  their  estate,  and  to  provide  a  compe- 
tent substitute  to  secure  redress  when  occasion  arises.  It  may  be 
safely  assumed  that  the  friendly  or  selfish  interest  of  friends  or  rela- 
tives will,  in  the  presence  of  so  simple  a  recourse,  leave  few  incapable 
persons  possessed  of  estate  free  to  dissipate  it,  or,  in  the  event  of  a 
wasteful  bargain  or  disposition  by  one  whose  power  has  not  been 
legally  restrained,  that  such  interest  will  prompt  to  speedy  action, 
which  will  lead  to  an  intelligent  conservation  of  the  incompetent's 
interests  before  delay  has  witnessed  the  dissipation  of  the  considera- 
tion received,  or  permitted  substantial  changes  in  the  status  of  the 
bona  fide  grantee.  These  considerations  deprive  of  much  of  their 
force  the  arguments  for  the  extreme  doctrine  laid  down  in  the  Mas- 
sachusetts and  Maine  cases,  which  is  therein  drawn  so  strongly  from 
the  necessities  of  the  situation,  and  the  consequences  to  incompetents 
assumed  to  flow  from  any  other  doctrine. 

The  assumed  analogy  between  the  status  of  infants  and  incompe- 
tents, of  which  so  much  is  made,  especially  in  the  Maine  case,  is  by 
no  means  a  perfect  one,  and  may  easily  be  carried  too  far.  It  is  one 
thing  to  hold  that  he  who  does  not  discover  the  tangible,  definite, 
and  ascertainable  status  of  minority  must  suffer  the  consequences, 
and  quite  another  to  say  that  he  who  fails  to  detect  the  existence  of 
the  subtle,  elusive,  and  sporadic  condition  of  mental  unsoundness, 
and  to  correctly  measure  its  degree,  cannot  be  heard  in  a  court  of 
equity  to  plead  his  ignorance  and  good  faith.  There  are  practical 
reasons  for  the  protection  of  an  infant,  who  cannot  be  put  into  a 
position  where  his  acts  become  a  nullity,  and  who,  it  is  said,  cannot, 
or  at  least  may  not,  make  a  disaffirmance  of  his  conveyances  of  realty 
until  time  has  brought  him  to  his  majority,  which  do  not  exist  in  the 
case  of  the  incapable  person.  Reeve's  Domestic  Relations,  254.  In 
this  connection  it  is  to  be  noticed  that  the  cases  in  question  do  not 
stop  with  the  logical  consequences  of  the  analogy  assumed.  In  both 
states  the  contemporaneous  view  seems  to  have  been  that,  if  an  infant 


534  INSANITY. 

(iisaffi  in  ;iis  contract,  he  must  restore  the  consideration,  in  so  far 
as  he  had  it  in  his  hands.  Badger  v.  Fhinney,  15  Mass.  359,  8  Am. 
Dec.  105;  Bartlettv.  Cowles,  15  Gray,  445;  Boody  v.  McKenney,  23 
.Me.  517.  In  the  case  of  incompetents,  there  is  no  hint  of  a  duty  to 
restore  under  any  circumstances,  as  involved  in  the  right  of  equitable 
cancellation.  In  so  far  as  this  state  is  concerned,  argument  from  the 
analogv  referred  to  virould  support  the  proposition  that  restoration  was 
a  cond.tion  precedent  to  an  incompetent's  rescission  of  an  executed 
contract  or  conveyance,  where  the  other  party  had  acted  in  ignor- 
ance of  the  disability,  and  fairly  and  in  good  faith,  since  the  privilege 
of  avoidance  is,  under  similar  circumstances,  refused  to  an  infant 
who  has  so  enjoyed  or  availed  himself  of  the  consideration  that  the 
parties  cannot  be  restored  to  their  original  position.  Riley  v.  Mallory, 
2^1  Conn.  201;  Gregory  v.  Lee,  64  Conn.  407,  30  Atl.  53.  The  true 
principle,  however,  would  appear  to  be  that  the  incidents  of  those 
contracts  and  conveyances  which  the  law  regards  as  voidable, 
whether  by  reason  of  fraud,  duress,  intoxication,  infancy,  mental 
disability,  or  other  cause,  differ  according  to  the  circumstances  which 
give  rise  to  the  defect,  and  that  each  class  of  cases  stands  in  a 
court  of  equity  upon  a  more  or  less  independent  footing;  the  status 
and  incidents  of  each  to  be  determined  by  all  the  conditions  and 
considerations  involved,  as  they  appeal  to  the  judicial  conscience. 
One  deduction  by  analogy,  however,  seems  fully  justified;  and  that 
is  that,  if  restitution  is  required  of  an  infant,  it  should  be  required 
on  the  part  of  an  incompetent  not  under  guardianship,  in  favor  of 
one  who  has  dealt  with  him  in  ignorance  and  good  faith.  Both 
reason  and  authority,  by  way  of  analogy,  in  this  jurisdiction,  there- 
fore, appear  to  us  to  support,  as  the  best  general  rule,  the  proposition 
hereinbefore  stated  as  having  the  support  of  the  English  and  the 
greater  number  of  American  cases.  It  needs  no  argument  to 
demonstrate  that,  if  restitution  must  be  made  to  the  immediate 
grantee  of  the  incompetent,  subsequent  grantees  who  take  the  title 
in  like  good  faith  and  ignorance  of  the  incompetent's  disability  are 
entitled  to  be  restored  to  their  original  position,  before  they  can  be 
deprived  of  their  property  by  the  intervention  of  a  court  of  equity. 


VOIDABILITY   OF   CONTRACTS.  535 

SEAVER  V.   PHELPS. 
II  Pick.  (Mass.)  304. —  1831. 

Trover,  to  recover  the  value  of  a  promissory  note,  pledged  by 
the  plaintiff  to  the  defendant.  The  suit  was  brought  on  the  ground 
that  the  plaintiff  was  in  a  state  of  insanity  at  the  time  when  he  made 
the  pledge.  At  the  trial  in  the  Common  Pleas,  before  Williams,  J., 
the  counsel  for  the  defendant  requested  the  judge  to  instruct  the 
jury,  that  although  they  should  believe  the  plaintiff  was  insane  and 
incapable  of  understanding  at  the  time  of  making  the  contract,  yet 
that  if  the  defendant  was  not  apprised  of  that  fact,  or  had  no  reason, 
from  the  conduct  of  the  plaintiff  or  from  any  other  source,  to  sus- 
pect it,  and  did  not  overreach  or  impose  upon  the  plaintiff,  or  prac- 
tice any  fraud  or  unfairness,  then  the  contract  was  not  to  be 
annulled.  But  the  judge  held  this  not  to  be  law,  and  instructed  the 
jury  otherwise;  and  the  jury  returned  a  verdict  for  the  plaintiff. 

To  this  opinion  the  defendant  excepted. 

Wilde,  J.  The  general  doctrine  that  the  contracts,  and  other 
acts  in  pais,  of  idiots  and  insane  persons,  are  not  binding  in  law  or 
equity,  is  not  denied.  Being  bereft  of  reason  and  understanding, 
they  are  considered  incapable  of  consenting  to  a  contract,  or  of 
doing  any  other  valid  act.  And,  although  their  contracts  are  not 
generally  absolutely  void,  but  only  voidable,  the  law  takes  care 
effectually  and  fully  to  protect  their  interests;  and  will  allow  them 
to  plead  their  disability  in  avoidance  of  their  conveyances,  pur- 
chases and  contracts,  as  was  settled  in  Mitchell  et  al.  v.  Kingman, 
5  Pick.  431.  And  such  is  probably  the  law  in  England  at  the  pres- 
ent day,  although  the  doctrine  for  a  long  time  prevailed  there,  that 
no  one  should  be  allowed  to  plead  his  own  incapacity  and  to  stultify 
himself.  These  principles  are  not  controverted  by  the  defendant's 
counsel;  but  they  maintain,  that  if  the  plaintiff  was  of  unsound  mind 
and  incapable  of  understanding,  at  the  time  he  pledged  the  note  to 
the  defendant,  yet  if  the  defendant  was  not  apprised  of  that  fact,  or 
had  no  reason  to  suspect  it  from  the  plaintiff's  conduct,  or  from  any 
other  source,  and  did  not  overreach  him,  or  practice  any  fraud  or 
unfairness,  then  that  the  contract  of  bailment  was  valid  and  bind- 
ing, and  could  not  be  avoided  in  the  present  action.  And  they 
requested  the  Court  of  Common  Pleas  so  to  instruct  the  jury.  That 
court,  however,  were  of  opinion  that  the  law  was  otherwise,  and  we 
all  concur  in  the  same  opinion.  If  it  had  been  only  proved  that  the 
plaintiff  was  a  person  of  weak  understanding,  the  instructions 
requested  would  have  been  appropriate  and  proper.     For  every  man 


536  INSANITY. 

after  arriving  at  full  age,  whether  wise  or  unwise,  if  he  be  compos 
mentis,  has  the  capacity  and  power  of  contracting  and  disposing  of 
his  property,  and  his  contracts  and  conveyances  will  be  valid  and 
binding,  provided  no  undue  advantage  be  taken  of  his  imbecility. 

It  is  sometimes  difficult  to  determine  what  constitutes  insanity, 
and  to  distinguish  between  that  and  great  weaknesss  of  understand- 
ing. The  boundary  between  them  may  be  very  narrow,  and,  in  fact, 
often  is,  although  the  legal  consequences  and  provisions  attached  to 
the  one  and  the  other,  respectively,  are  widely  different. 

In  the  present  case,  however,  this  point  is  settled  by  the  verdict, 
and  no  question  is  made  respecting  it.  We  are  to  consider  the 
plaintiff  as  in  a  state  of  insanity  at  the  time  he  pledged  his  note  to 
the  defendant;  and  this  being  admitted,  we  think  it  cannot  avail 
him  as  a  legal  defence,  to  show  that  he  was  ignorant  of  the  fact,  and 
practiced  no  imposition.  The  fairness  of  the  defendant's  conduct 
cannot  supply  the  plaintiff's  want  of  capacity. 

The  defendant's  counsel  rely  principally  on  a  distinction  between 
contracts  executed,  and  those  which  are  executory.  But  if  this  dis- 
tinction were  material,  we  do  not  perceive  how  it  is  made  to  appear 
that  the  contract  of  bailment  is  an  executed  contract,  for  if  the 
note  was  pledged  to  secure  the  performance  of  an  executory  con- 
tract, and  was  part  of  the  same  transaction,  it  would  rather  be 
considered  an  executory  contract.  But  we  do  not  consider  the 
distinction  at  all  material.  It  is  well  settled  that  the  conveyances 
of  a  nan  compos  are  voidable,  and  may  be  avoided  by  the  writ  dum 
fuit  non  compos  mentis^  or  by  entry. 

The  case  of  Bagster  et  al.  v.  The  Earl  of  Portsmouth,  5  Barn.  & 
Cressw.  172,  but  more  fully  reported  in  7  Dowl.  &  Ryl.  614,  has 
been  relied  on  as  countenancing  the  distinction  contended  for,  and 
to  show  its  bearing  on  the  point  in  question;  and  it  is  true  that  some 
of  the  remarks  which  fell  from  the  court  in  giving  their  opinion,  may 
be  thought  to  have  some  bearing  in  this  respect.  But  the  point 
decided,  and  the  grounds  of  the  decision,  not  only  fail  to  support 
the  defence  in  this  action,  but  may  be  considered  as  an  authority  in 
favor  of  the  plaintiff.  That  was  an  action  of  assumpsit  for  the  use 
of  certain  carriages  hired  by  the  defendant,  he  being  at  the  time  of 
unsound  mind,  and  judgment  was  rendered  for  the  plaintiff,  on  the 
ground  that  no  imposition  had  been  practiced  on  his  part;  and  par- 
ticularly because  the  carriages  furnished  appeared  to  be  suitable  to 
the  condition  and  degree  of  the  defendant,  considering  the  contracts 
of  a  non  compos  on  the  same  footing  as  those  of  an  infant;  and  the 
court  say,  in  Thompson  v.  Leach,  3  Mod.  310,  "that  the  grants  of 
infants,   and  of  persons  non   compos^  are  parallel    both    in    law   and 


VOIDABILITY    OF    CONTRACTS.  537 

reason."  Now,  no  one  would,  we  apprehend,  undertake  to  main- 
tain that  the  plaintiff  would  have  been  bound,  if  he  had  been  a  minor 
when  he  pledged  the  note.  It  does  not  appear  to  have  been  pledge  J 
for  necessaries;  and  all  contracts  of  infants  are  either  void  or 
voidable,  unless  made  for  education  or  necessaries  suitable  to  their 
degree  and  condition.  And  even  if  the  note  had  been  pledged  as 
security  for  the  payment  of  necessaries,  it  would  have  been  binding 
if  the  plaintiff  had  been  an  infant.  For  a  pledge  is  in  the  nature  of 
a  penalty,  and  may  be  forfeited,  and  can  be  of  no  advantage  to  the 
infant,  and  therefore  shall  not  bind  him. 

If,  then,  idiots  and  insanse  persons  are  liable  on  their  contracts 
for  necessaries,  they  are  certainly  entitled  to  as  much  protection  as 
infants.  It  matters  not,  however,  how  this  may  be,  since  the  con- 
tract in  question  is  not  one  for  necessaries. 

In  the  case  of  Brown  v.  yoddrell^  i  Moody  &  Malkin,  105,  Lord 
Tenterden  expressed  an  opinion,  that  in  assumpsit  for  goods  sold 
and  delivered,  and  for  work  and  labor,  it  would  be  no  defence  that 
the  defendant  was  of  unsound  mind,  unless  the  plaintiff  knew  of,  or 
in  any  way  took  advantage  of,  his  incapacity,  to  impose  on  him. 
This,  however,  was  an  opinion  expressed  at  fiisi  priits,  and  whether 
the  opinion  was  followed  up  to  the  final  decision  of  the  cause  or 
not,  does  not  appear.  But,  however  this  may  be,  the  opinion  is 
founded  on  the  old  rule,  somewhat  qualified,  that  no  one  can  be 
allowed  to  plead  his  own  disability  or  incapacity,  in  avoidance  of 
his  contracts.  This  rule  having  been  wholly  exploded  in  this  com- 
monwealth. Lord  Tenterden's  opinion  can  have  no  weight  here, 
unless  some  good  reason  could  be  shown  for  overruling  the  case  of 
Mitchell  et  al.  v.  Kingman^  which  we  think  cannot  be  done. 

We  are  aware  that  insanity  is  sometimes  hard  to  detect,  and  that 
persons  dealing  with  the  insane  may  be  subjected  to  loss  and  diffi- 
culty; but  so  they  may  be  by  dealing  with  minors.  The  danger, 
however,  cannot  be  great,  and  seems  to  furnish  no  sufficient  cause 
for  modifying  the  rules  of  law  in  relation  to  insane  people,  if  we  had 
an)''  power  and  authority  so  to  do;  which  we  have  not. 

Judgment  of  C.  C.  P.  affirmed. 


THE  IMPERIAL  LOAN  COMPANY,  LIMITED  v.  STONE. 

[1892.]    I  Q.  B.  599.   (Eng.) 

The  action  was  brought  on  a  promissory  note  which  the  defend- 
ant, who  had  since  the  making  of  the  note,  been  found  by  inquisition 
to  be  a  lunatic,  signed  as  surety.     The  statement  of  defence  alleged 


538  INSANITY. 

that  the  defendant  wiien  he  signed  the  note  was  so  insane  as  to  be 
incapable  of  understanding  what  he  was  doing,  and  this  allegation 
was  repeated  with  the  further  allegation  added  that  the  insanity  of 
the  defendant  was  known  to  the  plaintiffs. 

The  case  was  tried  before  Denman,  J.,  who  left  to  the  jury  the 
questions  whether  the  defendant,  when  he  signed  the  note,  was  so 
insane  as  not  to  be  capable  of  understanding  what  he  did,  and  whether 
this  incapacity  was  known  to  the  agent  of  the  plaintiffs  who  was 
present  when  the  note  was  signed.  The  jury  found  that  the  defend- 
ant was  insane  when  he  signed  the  note;  but  they  could  not  agree 
upon  the  question  as  to  the  knowledge  of  plaintiff's  agent.  The 
learned  judge  entered  a  verdict  for  the  defendant.  The  plaintiffs 
applied  for  judgment  or  for  a  new  trial. 

Lord  Esher,  M.  R.  In  this  case  judgment  has  been  entered  for 
the  defendant  on  the  findings  of  the  jury,  although  the  jury  have 
not  agreed  on  one  of  the  questions  left  to  them.  If  we  are  of  opin- 
ion that  the  entry  of  judgment  is  wrong,  no  other  course  is  open  to 
us  but  to  direct  a  new  trial. 

The  action  is  on  a  promissory  note  signed  by  the  defendant  as 
surety,  and  his  answer  is  that  he  was  so  insane  at  the  time  he  signed 
the  note  that  he  was  not  capable  of  understanding  the  transaction,  and 
the  jury  have  found  that  this  was  so.  The  defence  added  another 
matter,  namely,  that  the  plaintiffs  knew  of  the  defendant's  state, 
and  on  that  point  the  jury  have  been  unable  to  agree.  This  raises 
the  questions  whether  that  allegation  is  a  necessary  part  of  the  plea, 
and  if  so,  on  whom  the  burden  of  proving  it  lies. 

I  shall  not  try  to  go  through  the  cases  bearing  on  the  subject;  but 
what  I  am  about  to  state  appears  to  me  to  be  the  result  of  all  the 
cases.  When  a  person  enters  into  a  contract,  and  afterwards  alleges 
that  he  was  so  insane  at  the  time  that  he  did  not  know  what  he  was 
doing,  and  proves  the  allegation,  the  contract  is  as  binding  on  him 
in  every  respect,  whether  it  is  executory  or  executed,  as  if  he  had 
been  sane  when  he  made  it,  unless  he  can  prove  further  that  the 
person  with  whom  he  contracted  knew  him  to  be  so  insane  as  not  t» 
be  capable  of  understanding  what  he  was  about. 

It  can  hardly  be  doubted  that  for  a  long  series  of  years,  if  insanity 
was  set  up  in  answer  to  an  action  for  breach  of  contract,  it  must 
have  been  pleaded,  and  the  plea  was  not  good  unless  it  went  on  to 
allege  knowledge  on  the  part  of  the  plaintiff.  The  fact  of  such  a 
plea  being  required,  and  having  to  go  to  that  extent,  shows  that  the 
law  as  I  have  stated  it  was  generally  accepted.  The  burden  of 
proof,  in  such  a  case,  must  lie  on  the  defendant;  the  jury  have  dis- 


VOIDABILITY    OF    CONTRACTS.  539 

agreed  on  a  material  question  in  the  cause,  and  as  there  is  no  find- 
ing  on  that  question,  the  case  must  go  back  for  a  new  trial. 

Fry,  L.  J.  I  also  disagree  with  the  conclusion  of  the  learned 
judge.  The  law  relating  to  this  matter  I  take  to  be  of  very  old 
date,  and  much  light  is  thrown  upon  it  by  Littleton  in  his  Treatise 
on  Tenures.  That  learned  author,  in  treating  of  descents,  laid 
down  (Litt.  sec.  405)  that  "  no  man  of  full  age  shall  be  received  in  any 
plea  by  the  law  to  stultify  and  disable  his  own  person;"  but  he 
went  on  to  point  out  that  the  heir  can  avoid  a  deed  niade  by  a  per- 
son non  compos  mentis^  though  the  person  himself  could  not.  The 
subject  came  before  the  Court  of  tCing's  Bench  in  Bcverlef  s  Cise 
[4  Co.  Rep.  123b.],  where  the  court  laid  down,  "  that  every  d:;ed, 
feoffment,  or  grant,  which  any  man  non  compos  mentis  makes,  is 
avoidable,  and  yet  shall  not  be  avoided  by  himself,  because  it  is  a 
maxim  in  law  that  no  man  of  full  age  shall  be,  in  any  plea  to  be 
pleaded  by  him,  received  by  the  law  to  stultify  himself,"  and  refer- 
ence was  made  to  Littleton's  Tenures.  Before  that  date,  Fitzherbert 
(F.  N.  Br.  202  D.)  took  a  different  view;  but  his  view  was  over- 
ruled by  Stroud  v.  Marshal,  Cro.  Eliz.  398.  Then  came  Coke,  who 
adopted  the  view  of  Littleton  (Co.  Litt.  247b.),  who,  he  said,  was 
of  opinion  "  that  neither  by  plea  nor  by  writ  nor  otherwise,  he  him- 
selfe  shall  avoid  it,  but  his  heire  (in  respect  his  ancestor  was  non 
compos  mentis)  shall  avoid  it  by  entrie,  plea,  or  writ.  And  herewith 
the  greatest  authorities  of  our  bookes  agree;  and  so  it  was  resolved 
with  Littleton,  \w  Beverley' s  Case  [4  Co.  Rep.  123b.],  where  it  is  said, 
that  it  is  a  maxim  of  the  common  law,  that  the  partie  shall  not  dis- 
able himself e."  Therefore,  although  in  certain  cases  the  Crown,  and 
in  other  cases  persons  who  claimed  under  one  who  was  fion  compos 
mentis,  could  set  up  the  disability,  the  man  himself  could  not.  In 
Molton  V.  Camroux  [2  Ex.  487],  which  was  affirmed  in  the  Exchequer 
Chamber,  [4  Ex.  17],  Pollock,  C.  B.,  in  delivering  the  judgment  of 
the  court,  said  the  rule  had  in  modern  times  been  relaxed,  and 
unsoundness  of  mind  would  now  be  a  good  defence  to  an  action 
upon  a  contract,  if  it  could  be  shown  that  the  defendant  was  not  of 
capacity  to  contract,  "  and  the  plaintiff  knew  it,"  and  for  this  he 
referred  to  Brown  v.  yoddrell  [i  Mood.  &  M.  105];  Baxter  v.  Earl 
of  Portsmouth  [5  B.  &  C.  170];  and  Dane  v.  Viscountess  Kirkivall 
[8  C.  &  P.  679].  It  thus  appears  that  there  has  been  grafted  on  the 
old  rule  the  exception  that  the  contracts  of  a  person  who  is  non 
compos  mentis  may  be  avoided  when  his  condition  can  be  shown  to 
have  been  known  to  the  plaintiff.  So  far  as  I  know,  that  is  the  only 
exception.     The  question  whether  that  knowledge  exists  has    not 


540  INSANITY. 

been  determined  in  this  case,  and  ci,)nsequently  we  cannot  say  that 
the  exception  applies,  and  judgment  could  not  properly  be  entered 
for  the  defendant.     There  must,  therefore,  be  a  new  trial. 

Lopes,  L.  J.  It  see  ins  to  nie  that  the  principle  to  be  deduced 
from  the  cases  m:iy  be  summarized  thus:  A  contract  made  by  a 
person  of  unsound  mind  is  not  voidable  at  that  person's  option  if  the 
other  party  to  the  contract  believed  at  the  time  he  made  the  con- 
tract that  the  person  with  whom  he  was  dealing  was  of  sound  mind. 
In  order  to  avoid  a  fair  contract  on  the  ground  of  insanity,  the 
mental  incapacity  of  the  one  must  be  known  to  the  other  of  the  con- 
tracting parties.  A  defendant  who  seeks  to  avoid  a  contract  on  the 
ground  of  his  insanity,  must  plead  and  prove,  not  merely  his  inca- 
pacity, but  also  the  plaintiff's  knowledge  of  that  fact,  and  unless  he 
proves  these  two  things  he  cannot  succeed.  Applying  that  in  the 
present  case,  it  is  apparent  that  the  verdict  entered  for  the  defend- 
ant cannot  stand,  but  that  there  must  be  a  new  trial. 

Order  for  new  trial. 


ALLEN  V.   BERRYHILL. 
27  Ia.  534.-1869. 

Dillon,  Ch.  J.  In  substance,  this  action  is  one  to  recover  judg- 
ment upon  the  notes  made  by  the  defendant  to  Allen.  Incidentally, 
authority  is  asked  to  enable  a  deed  of  the  property  to  be  made  when 
the  purchase  money  shall  be  paid.  It  is  not  a  case  where  a  specific 
performance  is  sought,  which  rests  in  the  discretion  of  the  court 
to  grant  or  refuse,  according  to  circumstances. 

The  case  should  be  regarded,  and  will  be  treated,  in  settling  the 
law  applicable  to  it,  as  if  it  were  in  form,  as  it  is  in  substance,  an 
ordinary  action  upon  the  notes. 

The  subject  of  the  contracts  of  insane  persons  was  recently 
before  the  court  in  the  case  of  Behrens  v.  McKenzie,  23  Iowa,  333. 
The  general  subject  was  quite  fully  examined  at  that  time  by  the 
counsel  who  argued  it,  and  by  the  court.  It  was  remarked  in  the 
opinion  delivered  therein,  that  "  the  decided  cases  are  far  from 
being  uniform  on  the  subject  of  the  liability  or  extent  of  liability  of 
persons  of  unsound  mind  for  acts  and  contracts  done  and  made 
while  in  this  condition."  *  *  *  "  'Yhe  state  of  the  law  is  such 
as  to  allow  us  to  decide  this  case  upon  principle." 

The  conflicting  and  very  unsatisfactory  state  of  the  authorities 
thus  referred  to  is  so  fully  exhibited  in  the  separate  opinion  of  our 


VOIDABILITY   OF   CONTRACTS.  54 1 

brother  Cole  (in  whose  conclusion,  however,  the  other  members  of 
the  court  cannot  concur),  that  it  is  not  deemed  necessary  more  par- 
ticularly to  refer  to  them  in  the  present  opinion. 

The  peculiarity  of  the  case  now  under  consideration  consists  in 
the  fact  that  the  representative  of  the  party  alleged  to  be  insane, 
and  with  whom  the  contract  was  made,  is  the  party  seeking  to  have 
it  enforced.  It  is  the  same  party  to  the  contract  that  makes 
defence,  and  the  defence  is  that  the  other  party  to  the  contract  was 
totally  insane  at  the  time  it  was  entered  into.  No  such  case,  that 
is,  no  case  where  it  was  the  same  party  who  set  up  as  a  defence  that 
his  adversary  was  insane,  was  referred  to  by  counsel,  nor  is  any  such 
referred  to  among  all  those  which  have  been  so  industriously  and 
carefully  collected  by  Mr.  Justice  Cole.  This  circumstance  is 
regarded  as  important,  and  as  distinguishing  the  case  from  those  in 
which  it  is  the  insane  party  who  pleads  his  incapacity  and  seeks  to 
prevent  the  sane  party  to  the  contract  from  enforcing  it  against  him. 
It  is  the  opinion  of  the  court  that  justice  and  sound  policy  concur 
in  requiring  it  to  hold,  as  it  does,  that  where  a  contract  has  been 
entered  into  (under  circumstances  which  would  ordinarily  make  it 
binding)  by  a  sane  person  with  one  who  is  insane,  and  that  contract 
has  been  adopted  and  is  sought  to  be  enforced  by  the  representa- 
tives of  the  latter,  it  is  no  defence  to  the  sane  party  merely  to  show 
that  the  other  party  was  noti  compos  metitis  at  the  time  the  contract 
was  made. 

There  are  obvious  reasons,  founded  on  the  justice  and  propriety 
of  protecting  those  whom  the  visitations  of  providence  have  incapaci- 
tated from  protecting  themselves,  against  contracts  which  are  dis- 
covered to  be  prejudicial  to  their  interests.  Their  incapacity  to  con- 
tract is  a  shield  which  the  law  places  in  their  own  hands  to  protect 
them,  not  a  sword  in  the  hands  of  others  with  which  to  cut  down  their 
rights.  If  a  person  who  is  of  unsound  mind,  or  who  is  afterwards  shown 
to  have  been  of  unsound  mind,  shall  chance  to  make  a  contract  which 
is  really  advantageous  to  him,  can  a  satisfactory  reason  be  given 
why  he  should  not  have  the  right  to  enforce  it?  No  such  reason 
occurs  to  us. 

The  reason  advanced  by  the  appellant  is,  that  in  law  two  minds 
must  concur  to  make  a  contract;  that  where  one  of  the  parties  is 
insane,  there  are  not  two  minds  capable  of  contracting;  hence  there 
is  and  can  be  no  contract;  and,  therefore,  no  liability  by  either 
party  to  the  other  thereon.  It  cannot  be  denied  that  there  is  to  the 
legal  mind,  prone  to  draw  and  often  delighting  to  indulge  in  refined 
and  acute  distinctions,  much  that  is  plausible  in  the  ground  here 
assumed.     But,  after  all,  is  that  ground  really  tenable?     As  applied 


542  INSANITY. 

to  this  case,  the  defendant  says  to  the  plaintiff:  "  Vou  cannot 
recover  because  you  have  no  contract."  The  plaintiff  replies, 
"  But  I  have  a  contract;  here  it  is;  it  consists  in  your  own  notes." 
Now  what  does  the  defendant  rejoin  :  "I  admit  you  have  my 
notes,  but,  though  signed  by  me,  they  are  not,  in  legal  contempla- 
tion, my  act,  because  you  have  no  power  to  agree  to  take  them." 
Is  this  rejoinder  not  subtle  rather  than  substantial?  In  fact,  the 
plaintiff  has  the  promise  or  contract  of  the  defendant,  and,  if 
fairly  obtained,  it  ought  to  be  no  defence  to  a  sane  defendant 
that  the  plaintiff's  mind  was  not  sound  at  the  time  the  contract  was 
made. 

The  objection  relied  on  by  the  defendant  is  one  of  the  many  diffi- 
culties which  have  arisen  out  of  the  use  of  the  words  "  void  "  and 
"  voidable,"  and  the  uncertain  extent  of  meaning  attached  to  them. 
The  conclusion  which  we  reach  derives  a  very  strong  support  in  the 
analogies  of  the  law.  Thus,  if  an  infant  make  a  contract  with  one 
of  full  age,  it  may,  as  is  well  known,  be  enforced  by  the  infant 
against  the  adult,  but  not  by  the  adult  against  the  infant,  if  the 
latter  pleads  (and  the  plea   is  purely  personal)  his  disability. 

So,  also,  the  same  doctrine  applies  to  the  disability  of  coverture. 
And  this  court  has  decided,  that,  while,  as  a  general  rule,  it  is  true 
that  the  discharge  of  a  principal  releases  a  surety,  yet  it  holds  that 
"  where  a  person  siii juris  becomes  surety  for  a  married  woman,  a 
minor,  or  other  person  incapable  of  contracting,"  the  surety  is 
bound,  notwithstanding  a  successful  plea  of  disability  on  the  part  of 
the  principal,  yoncs  v.  Crosthivaite,  17  Iowa,  393,  396,  and  cases 
cited.  Another  illustration:  Delivery  is  essential  to  a  deed,  and 
acceptance  essential  to  delivery,  and  there  can  be  no  acceptance 
without  mental  assent.  This  is  a  general  rule  of  law,  and  yet  a 
deed  made  to  an  infant  or  to  a  lunatic,  although  there  be  no  mental 
capacity  capable  of  understanding  the  nature  of  the  instrument,  is 
valid.  The  law  supplies  or  presumes  the  requisite  assent  to  an  act 
beneficial  to  the  party;  or  it  dispenses  with  it.  So  here.  Where  a 
person  of  unsound  mind  makes  a  contract  which  is  beneficial  to  him, 
the  law  supplies  or  presumes  the  existence  of  the  requisite  capacity, 
or,  for  his  protection,  estops  the  other  party  to  set  up  and  sustain 
this  objection.  The  subject  might  be  further  elaborated,  but  it  is 
scarcely  needful  to  do  so. 

It  is  the  opinion  of  the  majority  of  the  court  that  the  eighth  count 
of  the  answer  pleaded  no  sufficient  defence,  and  this  conclusion  is 
strengthened  by  the  consideration  that  it  is  not  alleged  therein  that 
the  incapacity  of  Allen  was  unknown  to  the  defendant  at  the  time 
the  contract  was  made.      If  the  contract  was  made  by  the  defendant 


VOIDABILITY    OF   CONTRACTS.  543 

with  knowledge  of  Allen's  situation,  his  claim  to  make  this  defence 
is  thereby  weakened. 

The  allegation  of  Downey's  insolvency  is  no  defence  to  the  pres- 
ent action.     This  is  so  obvious  as  not  to  require  any  special  notice. 

Affirmed. 

Cole,  J.,  dissenting. 


ALLIS  V.   BILLINGS. 

6  Met.  (Mass.)  415.  —  1843. 

Writ  of  entry  to  recover  seven  acres  of  land  . 

Dewey,  J.  The  question  raised  in  the  present  case  is,  whether 
the  deed  of  one  who  is  insane,  at  the  time  of  the  execution  thereof, 
is  void  absolutely,  or  merely  voidable. 

The  term  "void,"  as  applicable  to  conveyances  or  other  agree- 
ments, has  not  at  all  times  been  used  with  technical  precision,  nor 
restricted  to  its  peculiar  and  limited  sense  as  contradistinguished 
from  "voidable;"  it  being  frequently  introduced,  even  by  legal 
writers  and  jurists,  where  the  purpose  is  nothing  further  than  to 
indicate  that  a  contract  was  invalid,  and  not  binding  in  law.  But 
the  distinction  between  the  terms  "  void  "  and  "  voidable,"  in  their 
application  to  contracts,  is  often  one  of  great  practical  importance; 
and  whenever  entire  technical  accuracy  is  required,  the  term 
"  void  "  can  only  be  properly  applied  to  those  contracts  that  are  of 
no  effect  whatsoever;  such  as  are  a  mere  nullity,  and  incapable  of 
confirmation  or  ratification. 

This  question,  then,  arises:  Is  the  deed  of  a  person  non  compos 
mentis  of  such  a  character  that  it  is  incapable  of  confirmation? 
This  point  is  not  now  for  the  first  time  raised,  but  has  been  the  sub- 
ject of  comment  both  by  elementary  writers  and  in  judicial  opinions. 
Mr.  Justice  Blackstone,  in  his  Commentaries,  vol.  ii,  p.  291,  states 
the  doctrine  thus:  "  Idiots,  and  persons  of  non-sane  memory, 
infants  and  persons  under  duress,  are  not  totally  disabled  to  convey 
or  purchase,  but  sub  modo  only,  for  their  conveyances  and  purchases 
are  voidable,  but  not  actually  void." 

Chancellor  Kent  says:  "  By  the  common  law,  a  deed  made  by 
a  person  non  compos  is  voidable  only,  and  not  void."  2  Kent's 
Com.  (4th  ed.)  451.  In  W lit  v.  Mxxwell,  5  Pick.  217,  this  court 
adopted  the  same  principle,  and  directly  ruled  that  the  deed  of  a  non 
compos,  not  under  guardianship,   was  not  void,  but  voidable.     Such 


544  INSANITY. 

a  deed  conveys  a  seizin  to  the  grantee,  and  the  deed,  to  that  extent, 
is  valid,  until,  by  entry  or  action,  the  same  is  avoided.  Mitchell  v. 
Kingman,  5  Pick.  431,  is  to  the  like  effect.  In  Scaver  v.  Phelps,  11 
Pick.  305,  the  contracts  of  insane  persons  are  noticed  as  contracts 
not  absolutely  void  but  voidable. 

It  may  seem  somewhat  absurd  to  hold  that  a  deed  should  have  any 
effect  when  wanting  in  one  of  the  essential  elements  of  a  valid  con- 
tract, viz.,  that  of  parties  capable  of  giving  an  assent  to  such  a  con- 
tract. But  this  objection  as  strongly  applies  to  cases  of  deeds 
executed  by  infants,  who  are  alike  wanting  in  capacity  to  make  a 
binding  contract.  Yet  this  principle  of  giving  so  much  effect  to  the 
contract  as  removes  it  beyond  that  of  a  mere  nullity,  and  renders  it 
to  some  present  purposes  effectual  and  susceptible  of  complete 
future  ratification,  is  well  settled  and  understood  as  to  infants  who 
enter  into  contracts;  and  it  will  be  found  that  there  is  a  common 
principle  on  this  subject,  alike  applicable  to  the  inability  of  a  con- 
tracting party,  arising  from  lunacy  or  infancy.  The  civil  and  the 
common-law  writers  group  together  idiots,  madmen,  and  infants,  as 
parties  incapable  of  contracting  for  want  of  a  rational  and  deliberate 
consenting  mind,  i  Story  on  Eq.  sec.  223,  and  authorities  there 
cited. 

It  is  true  that  the  rule  of  the  common  law,  as  held  at  one  time 
seemed  to  sanction,  in  one  particular,  a  most  unwarrantable  distinc- 
tion between  the  cases  of  deeds  made  by  persons  non  compos  and 
those  made  by  infants;  holding  that  the  former  could  not  be  avoided 
by  the  party,  upon  the  ground  that  no  man  of  full  age  should  be 
admitted  to  stultify  himself,  although  it  allowed  privies  in  blood,  or 
privies  in  representation,  after  the  death  of  the  tion  compos,  to  avoid 
the  deed,  on  the  ground  of  incapacity  in  the  grantor.  This  distinc- 
tion has  not  been  adopted  by  our  courts.  On  the  contrary,  we  hold 
that  such  conveyance  by  one  non  compos  mentis  may  be  avoided  by 
himself,  as  in  the  case  of  an  infant  grantor.  This  principle  was 
directly  recognized  in  the  case  of  Mitchell  \.  King)?ian,  $  Pick.  431. 
Indeed,  the  English  rule  has,  in  modern  times,  been  often  questioned 
in  England;  and  in  the  courts  of  our  sister  states,  it  has  received  little 
if  any  sanction,      i  Story  on  Eq.  sec.  225,  and  cases  there  cited. 

It  was  urged  by  the  demandant's  counsel,  that  the  doctrine  that 
the  deed  of  a  non  compos  person  was  voidable  only,  and  not  void, 
was  to  be  limited  to  feoffments,  or  cases  where  there  is  a  livery  of 
seizin,  or  what  is  equivalent,  and  would  not  embrace  a  conveyance 
by  an  unrecorded  deed.  But  we  do  not  think  that  such  a  distinc- 
tion can  be  maintained.  As  between  the  grantor  and  grantee,  such 
unrecorded  deed  is  good  and  effectual,  by  force  of  our  statute;  and 


VOIDABILITY   OF   CONTRACTS.  545 

the  effect  of  such  a  conveyance  would  be  to  vest  the  title  of  the 
grantor  in  the  grantee  immediately  upon  the  execution  of  the  deed,, 
and  before  the  same  is  recorded.  Marshall  v.  Fisk^  6  Mass.  31.  A 
deed  made  in  proper  form,  and  duly  acknowledged  and  recorded,  is. 
in  this  commonwealth,  equivalent  to  a  feoffment  with  livery  of  seizin. 
Somes  V.  Brewer,  2  Pick.  197.  Without  the  registry,  where  the 
delivery  of  the  deed  is  accompanied  by  the  surrender  of  the  posses- 
sion of  the  conveyed  premises  to  the  grantee,  the  effect  would  be  the 
same,  as  to  the  conveyance  by  a  non  cofupos,  as  would  result  from  a 
feoffment  made  by  him.  A  deed  of  bargain  and  sale,  it  is  said, 
places  the  grantee  upon  the  footing  of  a  feoffment,  as  it  passes  the 
estate  by  the  delivery  of  the  hand;  such  grants  or  deeds  as  take 
effect  by  delivery  of  the  hand  being  voidable  only.  Somes  v.  Brewer. 
2  Pick.  197;  Zouch  V.  Parsons,  [3  Burr.  1794].  We  come,  therefore, 
to  the  result,  that  the  deeds  of  infants,  and  insane  persons  are  alike 
voidable,  but  neither  are  absolutely  void. 

Upon  the  trial  of  the  present  action,  the  plaintiff  put  his  case  upon 
two  distinct  grounds:  ist.  That  he  was  insane  at  the  time  he  exe- 
cuted the  deed  under  which  the  tenant  derives  his  title;  2d,  That 
the  deed  was  obtained  by  undue  influence  and  fraud  on  the  part  of 
the  tenant.  Upon  both  these  points  the  plaintiff  introduced  evi- 
dence. What  was  the  extent  of  the  evidence  upon  the  latter  ground, 
and  what  would  have  been  the  finding  of  the  jury  upon  that  point,  we 
have  no  means  of  judging.  This  was  a  distinct  and  independent 
ground,  and  one  which,  if  found  in  favor  of  the  demandant,  might 
have  been  decisive  of  the  case,  but  which,  in  the  final  disposition  of 
the  cause,  was  not  considered  or  passed  upon  by  the  jury. 

All  the  evidence,  therefore,  bearing  upon  this  point,  is  now  to  be 
treated  as  if  never  offered,  and  the  sole  inquiry  for  our  consideration 
is,  whether  the  instructions  of  the  court  were  such,  in  matter  of  law, 
that  the  verdict  may  be  maintained,  taken  as  it  was  upon  the  first 
ground  solely.  The  presiding  judge  ruled,  as  a  matter  of  law,  that 
a  deed  of  an  insane  person  was  absolutely  void.  Under  this  ruling, 
all  that  was  required  of  the  demandant,  to  entitle  himself  to  a  ver- 
dict in  his  favor,  was  to  show  a  temporary  insanity  at  the  time  of 
the  execution  of  the  deed.  No  matter  what  might  have  occurred 
subsequently,  or  how  soon  afterwards  the  demandant  might  have 
been  restored  to  a  sound  mind;  no  matter  what  acts  of  confirmation 
may  have  been  done  by  him,  or  however  fully  he  may  have  adopted 
and  ratified  the  transaction,  by  the  receipt  of  money  or  other 
valuable  consideration  paid  for  the  land;  still  the  legal  title  in  the 
land  would  be  in  him.  This  was  the  necessary  result  of  the  doctrine, 
that  the  deed  of  a  non  cofnpos  was  absolutely  void,  while,  if  it  had 
[Domestic  Relations  —  35.] 


546  INSANITY. 

been  held  only  voidable,  these  subsequent  acts  of  the  party  might 
materially  affect  the  verdict  of  the  jury.  But,  adopting,  as  we  do, 
the  principle  that  the  deed  of  an  insane  person  is  only  voidable,  this, 
while  it  gives  the  insane  grantor  full  power  and  authority  to  avoid 
his  deed,  and  thus  furnishes  full  protection  to  him  against  all  acts 
injurious  to  his  interests,  done  while  he  was  twn  compos^  also  entitles 
the  other  party  to  set  up  the  deed,  if  he  can  show  a  ratification  or 
adoption  of  it  by  the  grantor,  after  he  is  restored  to  a  sound  mind. 
If  the  grantor,  when  thus  capable  of  acting,  and  with  full  knowledge 
of  his  previous  acts,  and  of  the  nature  and  extent  of  them,  will 
deliberately  adopt  and  ratify  them;  if  he  will  knowingly,  and  in  the 
exercise  of  his  proper  faculties,  take  the  benefit  of  a  contract  made 
while  he  was  insane, —  it  is  competent  for  him  to  do  so.  But  the 
consequence  will  be  to  give  force,  effect,  and  legal  validity  to  his 
contract,  which  was  before  voidable. 

In  the  present  case,  therefore,  upon  the  point  first  relied  upon  in 
the  defence,  viz.,  that  the  demandant  was  insane  when  he  executed 
the  deed,  the  jury  should  have  been  instructed  that  this  fact,  if  estab- 
lished, rendered  the  deed  voidable,  and  that  it  was  competent  for 
the  demandant  to  avoid  it  on  that  ground,  if  not  estopped  by  his 
subsequent  acts,  done  while  in  his  right  mind;  but  that  a  voidable 
deed  was  capable  of  confirmation;  and  that,  if  the  grantor,  in  his 
lucid  intervals,  or  after  a  general  restoration  to  sanity,  then  being 
of  sound  mind,  and  well  knowing  and  understanding  the  nature  of 
the  contract,  ratified  it,  adopted  it  as  a  valid  contract,  and  partici- 
pated in  the  benefits  of  it,  by  receiving  from  the  purchaser  the  pur- 
chase-money due  on  the  contract,  this  would  give  effect  to  the  deed, 
and  render  the  same  valid  in  the  hands  of  the  grantee,  and  would 
thus  become  effectual  to  pass  the  lands,  and  divest  the  title  of  the 
grantor.  Such  instructions  would  have  presented  the  question  in 
issue  in  a  different  aspect  to  the  jury,  and  might  have  led  to  a  differ- 
ent result  upon  the  only  point  upon  which  they  passed. 

Verdict  set  aside,  and  a  new  trial  granted.' 

'  "  It  is  insisted  by  the  learned  counsel  for  the  appellant  that  a  deed  made  by 
a  lunatic  is  'voidable  only  and  not  absolutely  void.'  We  think  the  weight  of 
authority  is  against  the  proposition.  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  Valen- 
tine V.  Lunt,  115  Id.  497;  Higgs  v.  American  Tract  Society,  95  Id.  503.  This  court 
is  already  committed  upon  the  proposition  by  its  decision  in  Goodyear  v.  Adams 
(5  N.  Y.  Supp.  275;  s.  c,  affirmed,  119  N.  Y.  650),  and  the  doctrine  finds  support 
in  Aldrich  v.  Bailey  (28  N.  Y.  St.  Rep.  571),  and  \n  Johnson  v.  Stone  (35  Hun.  383); 
Carter  v.  Beckwith  (40  N.  Y.  Rep.  347)."  —  Hardin,  P.  J.,  in  Brown  v.  Miles,  61 
Hun;  (N.  Y.)  453,  456.     But  see  Blinn  v.  Schwarz,  177  N.  Y.  252. 

"But  even  if  the  evidence  established  the  fact  of  his  insanity,  we  think  the 
evidence  abundantly  shows  that  he  had  lucid  intervals.     And  from  the  testimony 


VALID    CONTRACTS:    NECESSARIES.  547 

Valid  Contracts :  Necessaries, 
SCEVA  V.  TRUE. 
53  N.  H.  627.— 1873. 

Ladd,  j.  *  *  *  The  other  facts  stated  in  the  motion  (which 
is  to  be  regarded  rather  as  an  agreed  case  than  a  motion  to  dismiss) 
stand  upon  a  different  footing,  inasmuch  as  they  go  to  the  merits  of 
the  case,  and  may  be  pleaded  in  bar  or  given  in  evidence  under  the 
general  issue,  and,  when  so  pleaded  or  proved,  their  legal  effect  will 
be  a  matter  upon  which  the  court,  at  the  trial,  must  pass.  Some 
suggestions  upon  this  part  of  the  case  may  therefore  be  of  use. 

We  regard  it  as  well  settled  by  the  cases  referred  to  in  the  briefs 
of  counsel,  many  of  which  have  been  commented  on  at  length  by 
Mr.  Shirley  for  the  defendant,  that  an  insane  person,  an  idiot,  or  a 
person  utterly  bereft  of  all  sense  and  reason  by  the  sudden  stroke  of 
accident  or  disease,  may  be  held  liable,  in  assumpsit,  for  necessaries 
furnished  to  him  in  good  faith  while  in  that  unfortunate  and  helpless 
condition.  And  the  reasons  upon  which  this  rests  are  too  broad,  as 
well  as  too  sensible  and  humane,  to  be  overborne  by  any  deductions 
which  a  refined  logic  may  make  from  the  circumstance  that  in  such 
cases  there  can  be  no  contract  or  promise  in  fact, —  no  meeting  of 
the  minds  of  the  parties.  The  cases  put  it  on  the  ground  of  an 
implied  contract;  and  by  this  is  not  meant,  as  the  defendant's  coun- 
sel seems  to  suppose,  an  actual  contract, —  that  is,  an  actual  meeting 
of  the  minds  of  the  parties,  an  actual,  mutual  understanding,  to  be 
inferred  from  language,  acts,  and  circumstances,  by  the  jurv, —  but 
a  contract  and  promise,  said  to  be  implied  by  the  law,  where,  in 
point  of  fact,  there  was  no  contract,  no  mutual  understanding,  and 
so  no  promise.  The  defendant's  counsel  says  it  is  usurpation  for  the 
court  to  hold,  as  matter  of  law,  that  there  is  a  contract  and  a  prom- 
ise, when  all  the  evidence  in  the  case  shows  that  there  was  not  a 
contract,  nor  the  semblance  of  one.  It  is  doubtless  a  legal  fiction, 
invented  and  used  for  the  sake  of  the  remedy.  If  it  was  originally 
usurpation,  certainly  it  has  now  become  very  inveterate,  and  firmly 
fixed  in  the  body  of  the  law. 

Suppose  a  man  steals  my  horse,  and  afterwards  sells  it  for  cash: 

of  the  justice  of  the  peace,  who  took  the  acknowledgment  of  the  deed;  of  Phil- 
ips, who  was  present  when  the  contract  was  entered  into  ;  of  Mrs.  Lilly,  who 
saw  him  immediately  before  ;  and  of  Samuel  P.  Lilley,  who  saw  him  immediately 
after  the  sale,  we  think  it  abundantly  appears  that  he  was  then  sane." — Walker, 
J.,  in  Lilley  v.   IVaggotier,  27  111.  395,  399. 


548  INSANITY. 

the  law  says  I  may  waive  the  tort,  and  recover  the  money  received 
for  the  animal  of  him  in  an  action  of  assumpsit.  Why?  Because 
the  law,  in  order  to  protect  my  legal  right  to  have  the  money,  and 
enforce  against  the  thief  his  legal  duty  to  hand  it  over  to  me, 
implies  a  promise,  that  is,  feigns  a  promise  when  there  is  none,  to 
support  the  assumpsit.  In  order  to  recover,  I  have  only  to  show 
that  the  defendant,  without  right,  sold  my  horse  for  cash,  which  he 
still  retains.  Where  are  the  circumstances,  the  language  or  conduct 
of  the  parties  from  which  a  meeting  of  their  minds  is  to  be  inferred, 
or  implied,  or  imagined,  or  in  any  way  found  by  the  jury?  The 
defendant  never  had  any  other  purpose  but  to  get  the  money  for  the 
horse  and  make  off  with  it.  The  owner  of  the  horse  had  no  inten- 
tion to  sell  it,  never  assented  to  the  sale,  and  only  seeks  to  recover 
the  money  obtained  for  it  to  save  himself  from  total  loss.  The 
defendant,  in  such  a  case,  may  have  the  physical  capacity  to  promise 
to  pay  over  to  the  owner  the  money  which  he  means  to  steal;  but  the 
mental  and  moral  capacity  is  wanting,  and  to  all  practical  intents 
the  capacity  to  promise  according  to  his  duty  may  be  said  to  be  as 
entirely  wanting  as  in  the  case  of  an  idiot  or  lunatic.  At  all  events, 
he  does  not  do  it.  He  struggles  to  get  away  with  the  money,  and 
resists  with  a  determination  never  to  pay  if  he  can  help  it.  Yet  the 
law  implies,  and  against  his  utmost  resistance  forces  into  his  mouth, 
a  promise  to  pay.  So,  where  a  brutal  husband,  without  cause  or 
provocation,  but  from  wanton  cruelty  or  caprice,  drives  his  wife 
from  his  house,  with  no  means  of  subsistence,  and  warns  the  trades- 
men not  to  trust  her  on  his  account,  thus  expressly  revoking  all 
authority  she  may  be  supposed  to  have,  as  his  agent,  by  virtue  of 
the  marital  relation,  courts  of  high  authority  have  held  that  a  prom- 
ise to  pay  for  necessaries  furnished  her  while  in  this  situation,  in 
good  faith,  is  implied  by  law  against  the  husband,  resting  upon  and 
arising  out  of  his  legal  obligation  to  furnish  her  support.  See 
remarks  of  Sargent  in  Ray  v.  Alien,  50  N.  H.  83,  and  authorities 
cited.  So,  it  was  held  that  the  law  will  imply  a  promise  to  pay  toll 
for  passing  upon  a  turnpike  road,  notwithstanding  the  defendant, 
at  the  time  of  passing,  denied  his  liability  and  refused  payment. 
Proprietors  of  Turnpike  v.  Taylor,  6  N.  H.  499.  In  the  recent  Eng- 
lish case  of  Tlie  Great  Northern  Railw.  Co.  v.  Sivaffield,  L.  R., 
6  Exch.  132,  the  defendant  sent  a  horse  by  the  plaintiff's  railway 
directed  to  himself  at  S.  station.  On  the  arrival  of  the  horse  at  S. 
station,  at  night,  there  was  no  one  to  meet  it,  and  the  plaintiffs, 
having  no  accommodation  at  the  station,  sent  the  horse  to  a  livery 
stable.  The  defendant's  servant  soon  after  arrived  and  demanded 
the  horse;  he  was  referred  to  the  livery  stable  keeper,  who  refused 


VALID   CONTRACTS:   NECESSARIES.  549 

to  deliver  the  horse  except  on  payment  of  charges  which  were 
admitted  to  be  reasonable.  On  the  next  day  the  defendant  came  and 
demanded  the  horse,  and  the  station-master  offered  to  pay  the 
charges  and  let  the  defendant  take  away  the  horse;  but  the  defend- 
ant declined,  and  went  away  without  the  horse,  which  remained  at 
the  livery  stable.  The  plaintiffs  afterwards  offered  to  deliver  the 
horse  to  the  defendant  at  S.  without  payment  of  any  charges,  but 
the  defendant  refused  to  receive  it  unless  delivered  at  his  farm,  and 
with  payment  of  a  sum  of  money  for  his  expenses  and  loss  of  time 
Some  months  after,  the  plaintiffs  paid  the  livery  stable  keeper  his 
charges,  and  sent  the  horse  to  the  defendant,  who  received  it;  and 
it  was  held  that  the  defendant  was  liable,  upon  the  ground  of  a  con- 
tract implied  by  law,  to  the  plaintiffs  for  the  livery  charges  thus  paid 
by  them. 

Illustrations  might  be  multiplied,  but  enough  has  been  said  to 
show  that  when  a  contract  or  promise  implied  by  law  is  spoken  of,  a 
very  different  thing  is  meant  from  a  contract  in  fact,  whether  express 
or  tacit.  The  evidence  of  an  actual  contract  is  generally  to  be  found 
either  in  some  writing  made  by  the  parties,  or  in  verbal  communica- 
tions which  passed  between  them,  or  in  their  acts  and  conduct  con- 
sidered in  the  light  of  the  circumstances  of  each  particular  case. 
A  contract  implied  by  law,  on  the  contrary,  rests  upon  no  evidence. 
It  has  no  actual  existence;  it  is  simply  a  mythical  creation  of  the 
law.  The  law  says  it  shall  be  taken  that  there  was  a  promise,  when, 
in  point  of  fact,  there  was  none.  Of  course,  this  is  not  good  logic, 
for  the  obvious  and  sufficient  reason  that  ii:  is  not  true.  It  is  a  legal 
fiction,  resting  wholly  for  its  support  on  a  plain  legal  obligation,  and 
a  plain  legal  right.  If  it  were  true,  it  would  not  be  a  fiction.  There 
is  a  class  of  legal  rights,  with  their  correlative  legal  duties,  analo- 
gous to  the  obligationes  quasi  ex  contractu  of  the  civil  law,  which  seems 
to  lie  in  the  region  between  contracts  on  the  one  hand,  and  torts  on 
the  other,  and  to  call  for  the  application  of  a  remedy  not  strictly 
furnished  either  by  actions  ex  contractu^  or  actions  ex  delicto.  The 
common  law  supplies  no  action  of  duty,  as  it  does  of  assumpsit  and 
trespass;  and  hence  the  somewhat  awkward  contrivance  of  this 
fiction  to  apply  the  remedy  of  assumpsit  where  there  is  no  true  con- 
tract, and  no  promise  to  support  it. 

All  confusion  in  this  matter  might  be  avoided,  as  it  seems  to  me, 
by  a  suitable  discrimination  in  the  use  of  the  term  implied  contract. 
In  the  discussion  of  any  subject,  there  is  always  danger  of  spending 
breath  and  strength  about  mere  words,  as  well  as  of  falling  into 
error  when  the  same  term  is  used  to  designate  two  different  things. 
If  the  term,  implied  contract,  be  used  indifferently  to  denote  (i)  the 


550  INSANITY. 

fictitious  creation  of  the  law  spoken  of  above;  (2)  a  true  or  actual 
but  tacit  contract,  that  is,  one  where  a  meeting  of  the  minds  or 
mutual  understanding  is  inferred  as  matter  of  fact  from  circum- 
stances, no  words,  written  or  verbal,  having  been  used;  and  (3)  that 
state  of  things  where  one  is  estopped  by  his  conduct  to  deny  a  con- 
tract, although,  in  fact,  he  has  not  made  or  intended  to  make  one, — 
it  is  not  strange  that  confusion  should  result,  and  disputes  arise 
where  there  is  no  difference  of  opinion  as  to  the  substance  of  the 
matter  in  controversy:  whereas,  were  a  different  term  applied  to 
each,  as,  for  example,  that  of  a  legal  duty  to  designate  the  first, 
contract,  simply,  to  designate  the  second,  and,  contract  by  estoppel, 
the  third,  this  difficulty  would  be  avoided.  It  would  of  course, 
come  to  the  same  thing,  in  substance,  if  the  first  were  always  called 
an  implied  contract,  while  the  other  two  were  otherwise  designated  in 
such  way  as  to  show  distinctly  what  is  meant.  This  is  not  always  done, 
and  an  examination  of  our  own  cases  would,  perhaps,  show  that  more 
or  less  confusion  has  arisen  from  such  indiscriminate  use  of  the  term. 
A  better  nomenclature  is  desirable.  But  whatever  terms  are 
employed,  it  is  indispensable  that  the  distinction,  which  is  one  of 
substance,  should  be  kept  clearly  in  mind,  in  order  that  the  princi- 
ples governing  in  one  class  of  cases  may  not  be  erroneously  applied 
to  another.  See  remarks  of  Smith,  J.,  in  Bixby  v.  Moore,  51  N.  H. 
402,  and  authorities  cited  at  page  404. 

Much  may  doubtless  be  said  against  supplying  a  remedy  for  the 
enforcement  of  a  plain  legal  right  "  by  so  rude  a  device  as  a  legal 
fiction  "—Maine's  Ancient  Law,  26;  but,  at  this  time  of  day,  that 
is  a  matter  for  the  consideration  of  the  legislature  rather  than  the 
courts.  The  remedy  of  indebitatus  assumpsit  can  hardly  be  abolished 
in  that  large  class  of  cases  where  it  can  only  be  sustained  by  resort- 
ing to  a  fiction  until  some  other  is  furnished  to  take  its  place. 

It  by  no  means  follows  that  this  plaintiff  is  entitled  to  recover. 
In  the  first  place,  it  must  appear  that  the  necessaries  furnished  to 
the  defendant  were  furnished  in  good  faith,  and  with  no  purpose  to 
take  advantage  of  her  unfortunate  situation.  And  upon  this  ques- 
tion, the  great  length  of  time  which  was  allowed  to  pass  without 
procuring  the  appointment  of  a  guardian  for  her  is  a  fact  to  which 
the  jury  would  undoubtedly  attach  much  weight.  Its  significance 
and  importance  must,  of  course,  depend  very  much  on  the  circum- 
stances under  which  the  delay  and  omission  occurred,  all  of  which 
will  be  for  the  jury  to  consider  upon  the  question  whether  every- 
thing was  done  in  good  faith  towards  the  defendant,  and  with  an 
expectation  on  the  part  of  the  plaintiff's  intestate  that  he  was  to  be 
paid.     Again:    the  jury  are   to   consider  whether    the    support   for 


TESTAMENTARY   CAPACITY,  55  I 

which  the  plaintiff  now  seeks  to  recover  was  not  furnished  as  a 
gratuity,  with  no  expectation  or  intention  that  it  should  be  paid  for, 
except  so  far  as  compensation  might  be  derived  from  the  use  of  the 
defendant's  share  of  the  farm.  And,  upon  this  point,  the  relation- 
ship existing  between  the  parties,  the  length  of  time  the  defendant 
was  there  in  the  family  without  any  move  on  the  part  of  Enoch  F. 
Sceva  to  charge  her  or  her  estate,  the  absence  (if  such  is  the  fact)  of 
an  account  kept  by  him  wherein  she  was  charged  with  her  support, 
and  credited  for  the  use  and  occupation  of  the  land, —  in  short,  all 
the  facts  and  circumstances  of  her  residence  with  the  family  that  tend 
to  show  the  intention  or  expectation  of  Enoch  F.  Sceva  with  respect 
to  being  paid  for  her  support,  are  for  the  jury.  Miinger  v.  Miinger^ 
33  N.  H.  581;  Seavey  v.  Seavey,  37  N.  H.  125;  Bundy  v.  Hyde,  50 
N.  H.  116.  If  these  services  were  rendered,  and  this  support  fur- 
nished, with  no  expectation  on  the  part  of  Enoch  F.  Sceva  that  he 
was  to  charge  or  be  paid  therefor,  this  suit  cannot  be  maintained; 
for  then  it  must  be  regarded  substantially  in  the  light  of  a  gift  actu- 
ally accepted  and  appropriated  by  the  defendant,  without  reference 
to  her  capacity  to  make  a  contract,  or  even  to  signify  her  acceptance 
by  any  mental  assent. 

In  this  view,  the  facts  stated  in  the  case  will  be  evidence  for  the 
jury  to  consider  upon  the  trial;  but  they  do  not  present  any  ques- 
tion of  law  upon  which  the  rights  of  the  parties  can  be  determined 
by  the  court. 

Case  discharged.' 

Testamentary  Capacity. 

MIDDLEDITCH  v.  WILLIAMS. 
45  N.  J.  Eq.  726.— 1889. 
The  Vice  Ordinary.     The  question  presented  by  the  appeal  in 
this  case  is,  whether  a  decree  made  by  the  Orphans'  Court  of  Essex 

'  The  liability  of  an  insane  person  for  necessaries  is  more  extensive  than  that 
of  an  infant.  "That  which  is  necessary  for  the  protection  of  the  person  and 
estate  of  the  lunatic,  may  well  be  subject  to  question  and  consideration  ;  but 
when  a  demand  is  made  in  respect  of  a  necessary  of  that  kind,  1  do  not  see  how 
it  is  to  be  distinguished  in  principle  from  a  demand  arising  in  respect  of  the 
supply  of  food  and  clothing."  Williams  v.  Wentworth,  5  Beav.  (Eng.  Ch.)  325, 
329.  In  McCormick  v.  Littler,  85  III.  62,  a  mower  and  reaper  was  held  to  be  a 
necessary  for  an  insane  farmer.  In  Kendall  v.  May,  10  Allen  (Mass.),  59,  it  was 
held  that  one  who,  at  the  request  of  an  insane  person,  not  under  guardianship, 
took  him  for  a  pleasure  trip,  can  recover  his  expenses  from  the  insane  per- 
son,  where  the  jury  finds  such  expenses  to  be  reasonable  and  proper  under  the 
circumstances. 


552  INSANITY. 

county,  on  the  4th  day  of  June,  1888,  admitting  to  probate  a  paper 
purporting  to  be  the  last  will  of  William  H.  Livingston,  deceased, 
in  such  a  decree  as  the  court  should,  in  view  of  the  facts  of  the  case 
and  the  law  applicable  to  them,  have  made.  The  paper  in  question 
was  executed  on  the  nth  day  of  January,  1887,  in  the  city  of  New 
York,  where  the  testator  then  resided.  It  appears  to  have  been 
executed  in  strict  conformity  to  the  requirements  of  our  statute  regu- 
lating the  execution  of  wills.  After  the  execution  of  the  paper  in 
question,  Mr.  Livingston  removed  to  the  city  of  Newark,  in  this 
state,  where  he  died  on  the  4th  day  of  February,  1888.  His  wife 
died  in  August,  1886,  and  after  that  date,  up  to  the  time  of  his  own 
death,  his  family  consisted  of  himself,  his  daughter  Lillian  (his  only 
surviving  child),  and  his  mother-in-law,  Marie  C.  Williams.  His 
daughter,  at  the  time  of  her  mother's  death,  was  five  or  six  years 
of  age. 

******** 
The  validity  of  this  paper  as  the  will  of  Mr.  William  H.  Livingston 
is  contested  on  two  grounds:  First,  it  is  said,  that  it  is  shown  to  be 
the  product  of  an  insane  mind  ;  and,  second,  that  it  is  shown  to  be  the 
result  of  the  exercise  of  undue  influence.  And  it  is  claimed  that 
the  contents  of  the  paper  itself  furnish  strong  evidence  of  the  truth 
of  both  these  objections.  A  will  may  be  contrary  to  the  principles 
of  justice  and  humanity,  its  provisions  may  be  shockingly  unnatural 
and  extremly  unjust,  nevertheless,  if  it  appears  to  have  been  made 
by  a  person  of  sufficient  age  to  be  competent  to  make  a  will,  and 
also  to  be  the  free  and  unconstrained  product  of  a  sound  mind,  the 
courts  are  bound  to  uphold  it. 

The  paper  in  question  is,  however,  assailed  on  other  grounds.  It 
is  charged  that  it  is  the  direct  product  of  an  insane  delusion.  The 
testator  was  a  believer  in  spiritualism,  that  is,  he  believed  the  spirits 
of  the  dead  can  communicate  with  the  living,  through  the  agency  of 
persons  called  mediums,  and  who  possess  qualities  or  gifts  not  pos- 
sessed by  mankind  in  general.  The  proofs  show  that  the  testator 
stated  to  several  persons,  prior  to  the  execution  of  his  will,  that  the 
spirit  of  his  dead  wife  had  requested  him,  through  a  medium  residing 
in  Forty-sixth  street,  in  the  city  of  New  York,  to  make  provision 
for  his  mother-in-law  in  his  will.  To  one  person  he  said  that  his 
wife's  spirit  had  requested  him  to  give  all  his  property  to  her  mother, 
and  to  do  it  in  such  a  way  that  none  of  his  relatives  could  get  it 
away  from  her.  To  the  same  person  he  said,  at  another  time,  that 
the  spirit  of  his  wife  was  constantly  urging  him  to  make  a  will  in 
favor  of  her  mother.     To  another  person  he  said,  that  the  spirit  of 


TESTAMENTARY   CAPACITY.  553 

his  wife  had  requested  him  to  be  good  to  her  mother,  and  see  that 
she  was  made  comfortable  during  the  remainder  of  her  life,  and  he 
also  said  that  he  intended  to  make  a  will,  leaving  enough  to  his 
mother-in-law  to  make  her  comfortable,  because  his  wife  wanted  him 
to  do  so.  The  testator's  wife,  by  her  will,  gave  all  her  property  to 
the  testator,  subject,  however,  to  an  annual  payment  of  $500  to  her 
mother,  and  the  like  sum  to  her  brother,  William  P.  Williams,  during 
their  joint  lives,  and,  after  the  death  of  either,  then  to  the  payment 
of  $1,000,  annually,  to  the  survivor  during  his  or  her  life.  The  evi- 
dence shows,  I  think,  beyond  doubt,  that  the  testator  believed,  fully 
and  thoroughly,  that  the  messages  which  were  delivered  to  him, 
as  communications  from  his  wife,  actually  came  from  her  spirit,  and 
that  her  spirit  knew  constantly  all  that  he  was  doing. 

The  important  question  which  this  branch  of  the  case  presents  for 
decision  is,  was  such  a  belief  an  insane  delusion?  The  prevailing 
doctrine  in  England,  up  to  the  time  the  Court  of  Queen's  Bench 
decided  Banks  v.  Goodfelhnv,  L.  R.  (5  Q.  B.)  549,  was,  that  any 
degree  of  mental  unsoundness,  however  slight,  and  even  if  it  exer- 
cised no  influence  over  the  testator  in  making  his  will,  and  was  wholly 
unconnected  with  the  disposition  he  had  made  of  his  property, 
would,  nevertheless,  be  fatal  to  the  validity  of  his  will.  The  course 
of  reasoning  which  led  to  the  adoption  of  this  doctrine  is  stated  as 
follows  by  Cockburn,  C.  J.,  in  Banks  v.  Goodfelloiu,  (p.  559):  "  To 
constitute  testamentary  capacity,  soundness  of  mind  is  indis- 
pensably necessary.  But  the  mind,  though  it  has  various  faculties, 
is  one  and  indivisible.  If  it  is  disordered  in  any  one  of  these  facul- 
ties, if  it  labors  under  any  delusion  arising  from  such  disorder, 
though  its  other  faculties  and  functions  may  remain  undisturbed,  it 
cannot  be  said  to  be  sound.  Such  a  mind  is  unsound,  and  testa- 
mentary incapacity  is  the  necessary  consequence." 

A  different  doctrine  was  established  by  Banks  v.  Goodfellcnv.  It 
was. there  held,  that  if  a  testator  possesses  sufficient  mental  power 
to  take  into  account  all  the  considerations  necessary  to  the  proper 
making  of  a  will,  though  he  is  subject  to  some  delusion,  yet  if  it 
appears  that  such  delusion  did  not  influence  him,  and  was  not  calcu- 
lated to  influence  him,  in  making  his  will,  his  will  is  entitled  to  be 
regarded  as  a  valid  testamentary  act,  and  should  be  upheld.  The  prin- 
ciple established  by  that  case  is  expressed  in  the  following  sentence 
of  Chief  Justice  Cockburn's  opinion  (p.  566):  "  If  it  be  conceded, 
as  we  think  it  must  be,  that  the  only  legitimate  or  rational  g-;ound 
for  denying  testamentary  capacity  to  persons  of  unsound  mind  is 
the  inability  to  take  into  account  and  give  due  effect  to  the  con- 
siderations which  ought  to  be  present  to  the  mind  of  a  testator  in 


554  INSANITY. 

making  his  will,  and  to  influence  his  decision  as  to  the  disposal  of 
his  property,  it  follows  that  a  degree  or  form  of  unsoundness  which 
neither  disturbs  the  exercise  of  the  faculties  necessary  for  such  an 
act,  nor  is  capable  of  influencing  the  result,  ought  not  to  take  away 
the  power  of  making  a  will,  or  place  a  person  so  circumstanced  in  a 
less  advantageous  position  than  others  with  regard  to  this  right."- 
All  subsequent  cases  arising  in  England  have  been  decided  accord- 
ing to  this  principle,  and  it  is  now  the  established  law  of  that 
country.  Boughton  v.  Knight,  L.  R.  (3  Pro.  &  Div.)  64;  Jenkins  v. 
Morris,  L.  R.  (14  Ch.  Div.)  674;  Smee  v.  Smee,  L.  R.  (5  Pro.  & 
Div.)  84.  The  same  principle  has,  in  its  substance,  been  recognized 
by  the  Court  of  Errors  and  Appeals  of  this  state.  Chief  Justice 
Beasley,  in  pronouncing  the  judgment  of  that  court  in  Lozear  v. 
Shields,  8  C.  E.  Gr.  509,  511,  declared  that  partial  insanity  was 
insufficient,  of  itself,  to  justify  a  decree  setting  aside  a  sale  of  real 
property,  or  any  other  act.  He  said :  ' '  Mania  does  not,/<?r  se,  vitiate 
any  transaction,  for  the  question  is,  whether  such  transgression  has 
been  affected  by  it.  Where  a  pure  defence  of  mental  incapacity  is 
interposed,  I  think  the  true  test,  in  this  class  of  cases,  is,  whether 
the  party  had  the  ability  to  comprehend,  in  a  reasonable  manner, 
the  nature  of  the  affair  in  which  he  participated.  This  is  the  rule 
in  the  absence  of  fraud,  for  fraud,  when  present,  introduces  other 
principles  of  decision."  My  own  view  as  to  the  true  rule  on  this 
subject  may  be  stated  as  follows:  Even  if  it  appears  that  a  testator 
was  subject  to  an  insane  delusion  when  he  made  his  will,  but  it  is  also 
made  to  appear  that  his  delusion  was  not  of  a  character  likely  to 
influence  him,  and  did  not  influence  him,  in  the  disposition  which 
he  made  of  his  property,  his  will  should  be  declared  valid. 

But  this  is  somewhat  aside  from  the  question  mainly  in  contest  on 
this  branch  of  the  case,  namely,  is  a  belief  in  spiritualism  an  insane 
delusion?  Sir  John  Nicholl,  in  the  celebrated  case  of  Dew  v.  Clark, 
3  Addams,  79,  (2  Eng.  Ecc.  441),  defined  insane  delusion  as  follows: 

"  Wherever  the  patient  once  conceives  something  extravagant  to 
exist,  which  has  still  no  existence  but  in  his  own  heated  imagination, 
and  wherever,  at  the  same  time,  having  once  so  conceived,  he  is 
incapable  of  being,  or  at  least  of  being  permanently  reasoned  out  of 
that  conception,  such  a  patient  is  said  to  be  under  a  delusion  in  a 
peculiar,  half-technical  sense  of  the  term,  and  the  absence  or  presence 
of  delusion,  so  understood,  forms,  in  my  judgment,  the  true  and 
only  test  or  criterion  of  present  or  absent  insanity."  Dr.  Haggard's 
report  of  the  opinion  pronounced  in  Dew  v.  Clark  attributes  some- 
what different  language  to  Sir  John  Nicholl.  The  following  is  the 
definition  as  he  reports  it:     "  When  persons  believe  things  to  exist 


TESTAMENTARY    CAPACITY.  555 

which  exist  only,  or,  at  least,  in  that  degree  exist  only,  in  their  own 
imagination,  and  of  the  non-existence  of  which  neither  argument 
nor  proof  can  convince  them,  they  are  of  unsound  mind;  or,  as  one 
of  the  counsel  accurately  expressed  it,  '  It  is  only  the  belief  of  facts 
which  no  rational  person  would  have  believed,  that  is  insane  delu- 
sion.' "  I  Wms.  Exrs.  35;  i  Redf.  Wills,  71.  Sir  James  Hannen, 
in  Boughton  v.  Knight,  L.  R.  (3  Pro.  &  Div.)  64,  68,  adopted  the 
definition  as  reported  in  3  Addams,  as  the  true  one.  He  said  he 
believed  it  would  solve  most,  if  not  all  the  difficulties  which  could 
arise  in  investigations  of  the  kind  now  under  consideration.  Chief 
Judge  Denio,  in  Seamen  s  Friend  Society  v.  Hopper,  2)Z  N.  Y.  619,  624, 
said:  "  If  a  person  persistently  believes  supposed  facts,  which  have 
no  real  existence,  except  in  the  perverted  imagination,  and  against 
all  evidence  and  probability,  and  conducts  himself,  however  logically, 
upon  the  assumption  of  their  existence,  he  is,  so  far  as  they  are  con- 
cerned, under  a  morbid  delusion;  and  delusion  in  that  sense,  is 
insanity."  And  Cockburn,  C.  J.,  in  Banks  v.  Goodfellow,  L.  R.  (5 
Q.  B.)  549,  560,  says:  "When  delusions  exist  which  have  no 
foundation  in  reality,  and  spring  only  from  a  diseased  and  morbid 
condition  of  the  mind,  to  that  extent  the  mind  must  necessarily  be 
taken  to  be  unsound." 

According  to  these  definitions,  it  is  only  a  delusion  or  conception 
which  springs  up  spontaneously  in  the  mind  of  a  testator,  and  is  not 
the  result  of  extrinsic  evidence  of  any  kind,  that  can  be  regarded  as 
furnishing  evidence  that  his  mind  is  diseased  or  unsound;  in  other 
words,  that  he  is  subject  to  an  insane  delusion.  If,  without  evidence 
of  any  kind,  he  imagines  or  conceives  something  to  exist  which 
does  not,  in  fact,  exist,  and  which  no  rational  person  would,  in  the 
absence  of  evidence,  believe  to  exist,  then  it  is  manifest  that  the 
only  way  in  which  his  irrational  belief  can  be  accounted  for  is  that  it 
is  the  product  of  mental  disorder.  Delusions  of  this  kind  can  be 
accounted  for  upon  no  reasonable  theory  except  that  they  are  the 
creations  of  some  derangement  of  the  mind  in  which  they  originate- 
To  illustrate:  in  Smee  v.  Smee,  L.  R.  (5  Pro.  Div.)  84,  the  testator 
imagined  himself  to  be  the  son  of  George  IV,  and  that  when  he  was 
born  a  large  sum  of  money  had  been  put  in  his  father's  hands  for 
him,  but  which  his  father,  in  fraud  of  his  rights,  had  distributed  to 
his  brothers;  and  in  Smith  v.  Tebhitt,  L.  R.  (i  Pro.  &  Div.)  398,  the 
testatrix  imagined  herself  to  be  one  of  the  persons  of  the  Trinity 
and  her  chief  legatee  to  be  another.  The  delusion  in  both  instances- 
as  will  be  noticed,  wasindisputably  a  wild  and  baseless  fancy,  not  the 
product  of  evidence  of  any  kind,  but  obviously  the  offspring  of  a 
disordered  condition  of  mind.      But  where  a  testator  is  induced,  by 


556  INSANITY. 

false  evidence  or  false  statements,  to  believe  a  fact  to  exist  which 
does  not  exist,  or  where,  in  consequence  of  his  faith  in  evidence 
which  is  true,  but  which  is  wholly  insufficient  to  prove  the  truth  of 
what  he  believes,  he  believes  a  fact  to  exist  which  in  reality  has  no 
existence;  his  belief  may  show  want  of  discernment,  that  he  is  over- 
credulous  and  easily  duped,  or  that  he  lacks  power  to  analyze  and 
weigh  evidence,  or  to  discriminate  between  what  is  true  and  wha.t  is 
false,  but  it  furnishes  no  evidence  whatever  that  his  mind  is  dis- 
eased. His  belief  may  show  lack  of  judgment  or  want  of  reasoning 
power,  but  not  that  his  mind  is  unsound. 

The  testator's  belief  in  spiritualism  was  not  a  morbid  fancy,  rising 
spontaneously  in  his  mind,  but  a  conviction  produced  by  evidence. 
The  proofs  show  that,  when  he  first  commenced  attending  what  are 
called  seances,  he  was  inclined  to  be  skeptical;  afterwards  his  mind 
seemed  to  be  in  an  unstable  condition  —  he  sometimes  believed  and 
at  others  doubted — and  that  it  was  not  until   the  spirits  gave  an 
extraordinary  exhibition  of  their  power,  by  printing  or  painting  on 
a  pin,  worn  by  his  mother-in-law  on  her  neck,  in  brilliant  letters, 
which  sparkled  like  diamonds,   the  word  "  Dickie,"  a  pet  name  of 
his  dead  wife,  that  his  last  doubts  as  to  the  reality  of  the  manifesta- 
tions were  removed.      Believing,  as  I  do,  that  these  manifestations 
•  were   correctly   described    by    Vice-Chancellor    Giffard,    in   Lyon    v. 
Home,  L.  R.  (6  Eq.)  655,  682,  when  he  called  them  "  mischievous  non- 
sense, well  calculated,  on  the  one  hand,  to  delude  the  vain,  the  weak, 
the  foolish  and  the  superstitious;  and  on  the  other,  to  assist  the 
projects  of  the  needy  and  of  the  adventurer,"  still,  it  seems  to  me 
to  be  entirely  clear,  that  it  cannot  be  said  that  a  person  who  does 
believe  in  their  reality,  is,  because  of  such  belief,  of  unsound  mind, 
or  subject  to  an  insane  delusion.     No  court  has  as  yet  so  held.      No 
cases  on  this  subject  were  cited  on  the  argument.     Those  which  I 
have  examined  uniformly  hold  that  a  belief  in  spiritualism  is  not 
insanity.      The    court,    in    Robinson   v.    Adams,    62    Me.    369,    said: 
"  Belief  in   spiritualism   is   not    insanity,    nor   an    insane    delusion. 
*     *     *     The    term    'delusion,'    as    applied   to    insanity,    is   not    a 
mere  mistake  of  fact,   or  the  being  misled  by   false   testimony  or 
statements  to  believe  that  a  fact  exists  which  does  not  exist. ' '     And  in 
Broivn  V.  Ward,  53  Md.  376,  393,  it  was  said:     "  The  court  cannot 
say,  as  a  matter  of  law,  that  a  person  is  insane  because  he  holds  the 
belief  that  he  can  communicate  with  spirits  [of  the  dead],  and  can 
be  and  is  advised  and  directed  by  them  in  his  business  transactions 
and  the  disposition  of  his   property."     Substantially  the  same  view 
was  expressed  in  Otto  v.  Doty,  61  Iowa,  23,  and  also  in  the  Matter  of 
Smith's  Will,  52  Wis.  543.     The  utmost  length   to  which  any  court 


rURfS    13V    INSANE    PERSONS.  557 

has  as  yet  gone  on  this  subject  is  to  declare  that  a  belief  in  spiritu- 
alism may  justify  the  setting  aside  of  a  will  when  it  is  shown  that  the 
testator,  through  fear,  dread  or  reverence  of  the  spirit  with  which  he 
believed  himself  to  be  in  communication,  allowed  his  will  and  judg- 
ment to  be  overpowered,  and,  in  disposing  of  his  property,  followed 
implicitly  the  directions  which  he  believed  the  spirit  gave  him,  but, 
in  such  case,  the  will  is  set  aside,  not  on  the  ground  of  insanity,  but 
of  undue  influence.      Thompson  v.  Hawks,  14  Fed.  Rep.  902. 

There  is  no  evidence  in  this  case  which  will  support  a  conclusion 
that  the  testator,  at  the  time  he  executed  his  will,  was  subject  to  an 
insane  delusion. 

The  question,  however,  whether  or  not  the  paper  in  question  is  the 
will  of  the  testator,  must  be  decided  by  the  evidence  before  the  court. 
Taking  that  as  the  sole  guide  to  the  judgment  to  be  pronounced,  I 
think  it  is  the  duty  of  the  court  to  affirm  the  decree  made  below.' 


Torts  by  Iiisa7ie  Persons. 

WILLIAMS  V.  HAYS.' 
143  N.  Y.  442  —  1894. 

Appeal  from  judgment  of  the  General  Term  of  the  Supreme  Court 
in  the  first  judicial  department,  entered  upon  an  order  made  Novem- 
ber 18,  1892,  which  affirmed  a  judgment  in  favor  of  defendant  entered 
upon  a  verdict  and  affirmed  an  order  denying  a  motion  for  a  new 
trial,  and  also  affirmed  an  order  denying  a  motion  for  a  reargument. 

This  action  was  brought  by  plaintiff,  as  assignee  of  the  Phoenix 
Insurance  Company,  to  recover  the  sum  of  $893.89,  paid  to  the  firm 
of  Parsons  &   Loud,  as  owners  of  one-sixteenth  of  a  vessel,  upon  a 

'The  testator  "must,  in  the  language  of  the  cases,  have  sufficient  active 
memory  to  collect  in  his  mind,  without  prompting,  the  particulars  or  elements 
of  the  business  to  be  transacted,  and  to  hold  them  in  his  mind  a  sufficient 
length  of  time  to  perceive  at  least  their  obvious  relations  to  each  other,  and  be 
able  to  form  some  rational  judgment  in  relation  to  them."  —  Davies,  J.,  in 
Delafield  v.  Parish,  25  N.  Y.  9,  29. 

'  After  a  new  trial,  this  case  came  again  to  the  Court  of  Appeals,  in  157  N.  Y. 
541,  and  it  was  held  that  defendant  was  not  liable  if  his  mental  irresponsi- 
bility was  caused  by  his  efforts  to  save  the  vessel.  A  history  of  this  case  in  the 
New  York  courts  and  an  extended  critical  discussion  of  it  are  made  the  subject 
of  an  article  by  Wm.  B.  Hornblower  on  "  Insanity  and  the  Law  of  Negligence," 
in  5  Columbia  Law  Review^  278. 


558  INSANITY. 

policy  of  insurance  issued  by  the  Ph(i;nix  Insurance  Company  to 
said  firm. 

Earl,  J.  Tlie  defendant  and  others,  annnig  whom  were  Parsons 
and  Loud,  were  joint-owners  of  the  brig  "Siieldon."  By  an 
arrangenieat  between  the  defendant  and  the  other  owners  he  took 
the  vessel  to  sail  on  shares.  He  was  to  man  the  vessel,  to  pay  the 
crew  and  to  furnish  the  supplies,  and  he  was  to  have  one-half  of  her 
earnings,  after  certain  deductions,  for  his  share,  and  the  other 
owners  were  to  have  the  one-half,  after  certain  deductions,  for  their 
share.  He  was  to  have  the  absolute  control  and  management  of  the 
vessel,  and  became  her  owner  pro  hac  vice.  Webb  v.  Pierce,  i  Curt. 
113;  Thorp  V.  Hammond^  12  Wall.  416;  Somes  \.  White,  65  Me.  542. 
The  defendant,  under  the  arrangement  between  him  and  the  other 
owners  in  no  sense  became  their  agent  or  servant.  In  Webb  v. 
Fierceit  was  held  that  where  a  master  hires  a  vessel  on  shares  under 
an  agreement  to  victual  and  man  her,  and  employ  her  on  such  voy- 
ages as  he  thinks  best,  having  thereby  the  entire  possession,  com- 
mand and  navigation  of  her,  he  thereby  becomes  her  owner  pro  hac 
vice,  and  the  relation  of  principal  and  agent  does  not  exist  between 
them  and  the  owners.  The  other  cases  are  to  the  same  effect.  The 
defendant  thus  became  the  charterer  or  lessee  of  the  vessel  and  was 
responsible  to  the  other  owners  for  due  care  in  her  management,  and 
so  the  trial  judge  held. 

The  case  of  Moody  v.  Buck,  (i  Sand.  304),  which  holds  that  one 
co-owner  of  a  vessel  who  takes  and  navigates  her  for  his  own  benefit, 
is  not  liable  to  his  co-owners  for  her  loss  by  his  carelessness,  even 
if  correctly  decided  from  the  facts  there  existing,  is  not  applicable 
to  a  case  like  this,  where  the  co-owner  takes  the  vessel  not  in  his 
right  as  co-owner  for  the  purpose  of  using  his  own,  but  under  an 
agreement  with  the  other  owners  whereby  he  becomes  the  charterer, 
lessee  or  bailee  of  the  vessel,  and  thus  bound  to  some  duty  of  care 
and  fidelity.  There  can,  however,  be  no  question  that  that  case  was 
incorrectly  decided,  and  the  rule  laid  down  therein  is  not  consonant 
with  reason  or  justice.  I  cannot  find  that  it  has  ever  been  followed 
as  authority  in  any  subsequent  case,  and  it  is  in  conflict  with  many 
authorities.  ^Sheldon  v.  Skinner,  4  Wend.  529;  Cheslcy  v.  Thompson, 
3  N.  H.  9;  Her r in  v.  Eaton,  13  Me.  193;  Martin  v.  Knowllys,  8  T.  R. 
145;  Gillotv.  Dossat,  4  Martin  (La).,  203;  Domat's  Civ.  Law,  §  1489; 
I  Parsons  on  Maritime  Law,  95;  Ford's  Law  of  Merchant  Shipping, 
35,  45;  Cooley  on  Torts,  328,  659. 

The  Sheldon  was  loaded  with  ice  and  started  from  the  coast  of 
Maine  for  a  southern  port.  She  soon  encountered  storms,  and  the 
defendant  for  more  than  two  days  was  constantly  on  duty,  and  then 


TORTS    BY    INSANE    PERSONS.  559 

becoming  exhausted,  he  went  to  his  cabin,  leaving  the  vessel  in 
charge  of  the  mate  and  crew.  He  took  a  large  dose  of  quinine  and 
laid  down.  The  mate  found  that  the  rudder  was  broken  and  useless, 
and  that  the  vessel  could  not  be  steered.  He  caused  the  captain  to 
come  on  deck.  He  refused  to  believe  that  the  vessel  was  in  any 
trouble,  and  refused  the  help  of  two  tugs,  the  masters  of  which  saw 
the  difficulty  under  which  his  vessel  was  laboring,  and  successively 
ofifered  to  take  her  in  tow.  They  cautioned  him  that  his  vessel  was 
gradually  and  certainly  drifting  upon  the  shore;  and  in  broad  day- 
light she  did  drift  upon  the  shore  without  any  effort  upon  the  part 
of  the  defendant  or  any  of  his  crew  to  save  her,  and  she  became  a 
total  wreck.  Parsons  &  Loud  had  insured  their  interest  in  the  Phoenix 
Insurance  Company,  and  it  paid  them  the  loss.  It  thus  became  subro- 
gated to  their  claim,  if  any,  against  the  defendant  for  his  negligence 
or  misconduct  in  the  management  of  the  vessel,  and  it  assigned  that 
claim  to  the  plaintiff.  He,  standing  in  the  shoes  of  Parsons  &  Loud, 
brought  this  action  against  the  defendant  to  recover  damages  for 
the  loss  of  the  vessel,  alleging  that  it  was  due  to  his  carelessness 
and  misconduct. 

The  defendant  claims  that  from  the  time  he  went  to  his  cabin, 
leaving  the  vessel  in  charge  of  his  mate  and  crew,  to  the  time  the 
vessel  was  wrecked  and  he  found  himself  in  the  life-saving  station, 
he  was  unconscious  and  knew  nothing  of  what  occurred  —  that,  in 
fact,  he  was  from  some  cause  insane,  and,  therefore,  not  responsible 
for  the  loss  of  the  vessel.  The  case  was  submitted  to  the  jury  on 
the  theory  that  the  defendant,  if  sane,  was  guilty  of  negligence  caus- 
ing the  destruction  of  the  vessel;  but,  if  insane,  was  not  responsible 
for  her  loss  through  any  conduct  on  his  part  which  in  a  sane  person 
would  have  constituted  such  negligence  as  would  have  imposed 
responsibility. 

The  important  question  for  us  to  determine,  then,  is  whether  the 
insanity  of  the  defendant  furnishes  a  defence  to  the  plaintiff's  claim, 
and  I  think  it  does  not.  The  general  rule  is  that  an  insane  person 
is  just  as  responsible  for  his  torts  as  a  sane  person,  and  the  rule 
applies  to  all  torts,  except,  perhaps,  those  in  which  malice  and  there- 
fore, intention,  actual  or  imputed,  is  a  necessary  ingredient,  like 
libel,  slander  and  malicious  prosecution.  In  all  other  torts  intention 
is  not  an  ingredient,  and  the  actor  is  responsible,  although  he  acted 
with  a  good  and  even  laudable  purpose,  without  any  malice.  The 
law  looks  to  the  person  damaged  by  another  and  seeks  to  make  him 
whole,  without  any  reference  to  the  purpose  or  the  condition,  mental 
or  physical,  of  the  person  causing  the  damage.  The  liability  of  a 
lunatic  for  his  torts,  in  the  opinions  of  judges,  has  been  placed  upon 


560  INSANITY. 

several  grounds.  The  rule  has  been  invoked  that  where  one  of  two 
innocent  persons  must  bear  a  loss,  he  must  bear  it  whose  act  caused 
it.  It  is  said  that  public  policy  requires  the  enforcement  of  the  lia- 
bility that  the  relatives  of  a  lunatic  may  be  under  inducement  to 
restrain  him,  and  that  tort  feasors  may  not  simulate  or  pretend 
insanity  to  defend  their  wrongful  acts  causing  damage  to  others. 
The  lunatic  must  bear  the  loss  occasioned  by  his  torts,  as  he  bears 
his  other  misfortunes,  and  the  burden  of  such  loss  may  not  be  put 
upon  others. 

In  Buswell  on  Insanity  (sec.  355),  it  is  said:  "  Since  in  a  civil 
action  for  a  tort  it  is  not  necessary  to  aver  or  prove  any  wrongful 
intent  on  the  part  of  the  defendant,  it  is  a  rule  of  the  common  law 
that  although  a  lunatic  may  not  be  punishable  criminally,  he  is  liable 
in  a  civil  action  for  any  tort  he  may  commit." 

In  Cooley  on  Torts  (98),  the  learned  author  says:  "  A  wrong  is 
an  invasion  of  right  to  the  damage  of  the  party  who  suffers  it.  It 
consists  in  the  injury  done,  and  not  commonly  in  the  purpose  or 
mental  or  physical  capacity  of  the  person  or  agent  doing  it.  It  may 
or  may  not  have  been  done  with  bad  motive;  the  question  of  motive 
is  usually  a  question  of  aggravation  only.  Therefore,  the  law  in 
giving  redress  has  in  view  the  case  of  the  party  injured,  and  the 
extent  of  his  injury,  and  makes  what  he  suffers  the  measure  of  com- 
pensation. *  *  *  There  is,  consequently,  no  anomaly  in  compelling 
one  who  is  not  chargeable  with  wrong  intent  to  make  compensation 
for  an  injury  committed  by  him;  for,  as  is  said  in  an  early  case,  '  the 
reason  is  because  he  that  is  damaged  ought  to  be  recompensed.'  " 
And  at  page  100  he  says:  "  Undoubtedly  there  is  some  appearance 
of  hardship  —  even  of  injustice  —  in  compelling  one  to  respond  for 
that  which,  for  want  of  the  control  of  reason,  he  was  unable  to  avoid; 
that  it  is  imposing  upon  a  person  already  visited  with  the  inexpressi- 
ble calamity  of  mental  obscurity  an  obligation  to  observe  the  same 
care  and  precaution  respecting  the  rights  of  others  that  the  law 
demands  of  one  in  the  full  possession  of  his  faculties.  But  the  ques- 
tion of  liability  in  these  cases,  as  well  as  in  others,  is  a  question  of 
policy,  and  it  is  to  be  disposed  of  as  would  be  the  question  whether 
the  incompetent  person  should  be  supported  at  the  expense  of  the 
public,  or  of  his  neighbors,  or  at  the  expense  of  his  own  estate.  If 
his  mental  disorder  makes  him  dependent,  and  at  the  same  time 
prompts  him  to  commit  injuries,  there  seems  to  be  no  greater  reason 
for  imposing  upon  the  neighbors  or  the  public  one  set  of  these 
consequences  rather  than  the  other;  no  more  propriety  or  justice  in 
making  others  bear  the  losses  resulting  from  his  unreasoning  fury 
when  it  is  spent  upon  them  or  their  property,  than  there  would  be  in 


TORTS   BY   INSANE    PERSONS.  561 

calling  upon  them  to  pay  the  expense  of  his  confinement  in  an  asy- 
lum when  his  own  estate  is  ample  for  the  purpose." 

In  Shearman  and  Redfield  on  Negligence  (sec.  57),  it  is  said: 
"  Infants  and  persons  of  unsound  mind  are  liable  for  injuries  caused 
by  their  tortious  negligence ;  and,  so  far  as  their  responsibility  is  con- 
cerned, they  are  held  to  the  same  degree  of  care  and  diligence  as 
persons  of  sound  mind  and  full  age.  This  is  necessary  because 
otherwise  there  would  be  no  redress  for  injuries  committed  by  such 
persons,  and  the  anomaly  might  be  witnessed  of  a  child,  having 
abundant  wealth,  depriving  another  of  his  property  without  com- 
pensation." 

In  Reeves'  Domestic  Relations  (386),  it  is  said:  "Where  the 
minor  has  committed  a  tort  with  force,  he  is  liable  at  any  age;  for  in 
case  of  civil  injuries,  with  force,  the  intention  is  not  regarded;  for 
in  such  case  a  lunatic  is  as  liable  to  compensate  in  damages  as  a  man 
in  his  right  mind." 

The  doctrine  of  these  authorities  is  illustrated  in  many  interesting 
cases.  Bullock  v.  Babcock,  3  Wend.  391;  Hartfield  v.  Roper ^  21  Id. 
615;  Krom  v.  Schoonmaker,  3  Barb.  647;  Conklin  v.  Tho7npson,  29  Id. 
218;  Cross  V.  Kent,  32  Md.  581;  NealY.  Gillett,  23  Conn.  437;  Huch- 
iingw.  Engel,  17  Wis.  230;  Brotuft  v.  Hmve,  9  Gray,  84;  Morain  v. 
Devlin,  132  Mass.  87;  BealesY.  See,  10  Penn.  St.  56;  Humphrey  v. 
Douglass,  10  Vt.  71;  Morse  v.  Crawford,  17  Id.  499;  Cross  v.  Andrews, 
Croke,  Elizabeth,  622;  Jennings  v.  Rundall,  8  T.  R.  336. 

In  Bullock  V.  Babcock,  Judge  Marcy,  writing  in  a  case  where  an 
infant  twelve  years  old  was  held  liable  for  putting  out  one  of  the  eyes  of 
another  infant,  said:  "  The  liability  to  answer  in  damages  for  tres- 
pass does  not  depend  upon  the  mind  or  capacity  of  the  actor;  for 
idiots  and  lunatics  are  responsible  in  the  action  of  trespass  for  injuries 
inflicted  by  them." 

In  Krum  v.  Schoonmaker  it  was  held  that  a  lunatic  may  be  sued 
for  an  injury  done  to  another,  because  the  intent  with  which  the  act 
was  done  is  not  material.  There  the  action  was  against  a  justice  of 
the  peace  for  false  imprisonment  for  issuing  a  warrant  without  any 
complaint,  by  virtue  of  which  the  plaintiff  was  arrested. 

In  Cross  v.  Kent  it  was  held  that  a  lunatic  or  insane  person,  though 
not  punishable  criminally,  is  liable  to  a  civil  action  for  any  tort  he 
may  commit;  that  in  an  action  against  a  party  for  setting  fire  to  and 
burning  a  barn,  neither  evidence  of  his  lunacy  nor  that  the  burning 
was  the  result  of  accident,  is  admissible  in  mitigation  of  com- 
pensatory damages. 

In  Neal  v.  Gillett,  in  an  action  on  the  case  for  damages  caused  by 
the  negligence  of  the  defendants,  who  were  severally  of  the  ages  of 
[Domestic  Relations  —  36.] 


562  INSANITY. 

thirteen  and  sixteen  at  the  time  of  the  injury,  it  was  held  that  where 
the  plaintiff  claims  only  actual  damages,  the  youth  of  the  defendants 
is  not  to  be  taken  into  consideration  in  determining  the  question  of 
their  negligence. 

In  Iluchtirn::;  v.  Engel  it  was  held  that  an  infant,  though  under 
seven  years  of  age,  was  liable  in  an  action  of  trespass  for  breaking 
and  entering  the  plaintiff's  premises  and  breaking  down  and  destroy- 
ing his  shrubbery  and  flowers. 

In  Karow  v.  The  Continental  Insurance  Company,  it  is  said  in  the 
opinion:  "While  the  burning  of  his  own  property  by  an  assured 
under  no  restraint  of  duty  and  incapable  of  care,  and  without  any 
intent  or  design,  does  not  relieve  the  company  from  liability, 
yet  the  same  act  of  burning  another's  property  might  subject  such 
person  to  damages  therefor,  not  on  the  ground  of  negligence,  as 
that  word  is  usually  understood,  but,  in  the  language  of  Chief  Justice 
Gibson,  '  on  the  principle  that  where  a  loss  must  be  borne  by  one 
of  two  innocent  persons,  it  should  be  borne  by  him  who  occa- 
sioned it.' 

In  Broivn  v.  Howe  an  insane  person  carelessly  set  fire  to  the 
dwelling-house  of  his  guardian,  and  while  it  was  held  that  the  guardian 
could  not  be  allowed  the  amount  of  his  damages  in  his  probate 
account,  it  was  held  that  his  only  course  was  to  sue  the  adminis- 
trator of  the  lunatic,  who  had  died,  in  a  court  of  law,  and  have 
a  judgment  fixing  his  damages,  and  collect  it  from  the  assets,  if  the 
estate  was  solvent;  if  not,  to  share  with  the  other  creditors. 

In  Alorain  v.  Devlin,  it  was  held  that  a  lunatic  was  civilly  liable  for 
an  injury  caused  by  the  defective  condition  of  a  place,  not  in  the 
exclusive  occupancy  and  control  of  a  tenant,  upon  real  estate  of 
which  he  is  the  owner,  and  of  which  his  guardian  has  the  care  and 
management. 

In  Beaks  v.  See,  it  was  said  by  Gibson,  C.  J. :  "As  an  insane  man 
is  civilly  liable  for  his  torts,  he  is  liable  to  bear  the  consequences  of 
his  infirmity,  as  he  is  liable  to  bear  his  misfortunes,  on  the  principle 
that  where  a  loss  must  be  borne  by  one  of  two  innocent  persons  it 
shall  be  borne  by  him  who  occasioned  it." 

In  Morse  v.  Cratvford,  in  an  action  for  tort,  it  was  held  that  the 
fact  that  the  defendant  was  insane  at  the  time  of  committing  the 
injury  was  no  defence  to  the  action,  and  that  if  the  action  be  for 
destroying  property  intrusted  to  the  defendant,  it  is  no  defence  that 
the  plaintiff,  at  the  time  of  delivering  the  property  to  the  defendant, 
knew  that  he  was  insane.  In  the  opinion  of  the  Court  it  is  said: 
"  It  is  a  common  principle  that  a  lunatic  is  liable  for  any  tort  which 
he  may  commit,  though  he  is  not  punishable  criminally.      When  one 


TORTS   BY    INSANE    PERSONS.  563 

receives  an  injury  from  the  act  of  another,  this  is  a  trespass,  though 
done  by  mistake  or  without  design.  Consequently  no  reason  can  be 
assigned  why  a  lunatic  should  not  be  held  liable." 

In  Jennings  v.  Rimdall,  Lord  Chief  Justice  Kenyon  said:  "  If  an 
infant  commit  an  assault,  or  utter  slander,  God  forbid  that  he 
should  not  be  answerable  for  it  in  a  court  of  justice."  Lawrence,  J., 
also  writing  in  that  case,  mentioned  the  distinction  between  negli- 
gence and  an  act  done  by  an  infant;  and  he  held  that  the  same  rule 
would  have  to  be  applied  if  an  action  were  brought  against  an  infant 
for  negligently  keeping  the  plaintiff's  cattle,  by  which  they  died,  as 
would  be  applied  if  the  declaration  charged  the  infant  with  having 
given  the  cattle  bad  food  by  which  they  died. 

There  can  be  no  distinction  as  to  the  liability  of  infants  and  luna- 
tics, between  torts  of  non-feasance  and  of  misfeasance  —  between 
acts  of  pure  negligence  and  acts  of  trespass.  The  ground  of  the 
liability  is  the  damage  caused  by  the  tort.  That  is  just  as  great 
whether  caused  by  negligence  or  trespass;  the  injured  party  is  just 
as  much  entitled  to  compensation  in  the  one  case  as  in  the  other, 
and  the  incompetent  person  must,  upon  principles  of  right  and  jus- 
tice and  of  public  policy,  be  just  as  much  bound  to  make  good  the 
loss  in  the  one  case  as  the  other;  and  I  have  found  no  case  which 
makes  the  distinction.  That  infants  and  lunatics  are  liable  for  dam- 
age to  property  caused  by  their  negligent  acts,  was  asserted  in 
several  of  the  authorities  above  cited;  and  it  has  never  been  doubted 
that  at  common  law  an  action  of  trover  would  lie  against  one 
intrusted  with  the  personal  property  of  another  who  destroys  it, 
whether  the  destruction  be  by  a  negligent  act  or  a  willful  tort. 

I  sum  up  the  result  of  rhy  examination  of  the  authorities  as  fol- 
lows: This  vessel  was  intrusted  to  the  defendant  —  not  as  agent  — 
but  as  to  the  other  owners  as  charterer,  lessee,  or  bailee,  and  if  he 
caused  her  destruction  by  what  in  sane  persons  would  be  called 
willful  or  negligent  conduct,  the  law  holds  him  responsible.  The 
misfortune  must  fall  upon  him  and  not  upon  the  other  owners  of  the 
vessel. 

If  the  defendant  had  become  insane  solely  in  consequence  of  his 
efforts  to  save  the  vessel  during  the  storm,  we  would  have  had  a 
different  case  to  deal  with.  He  was  not  responsible  for  the  storm, 
and  while  it  was  raging,  his  efforts  to  save  the  vessel  were  tireless 
and  unceasing,  and  if  he  thus  became  mentally  and  physically  incom- 
petent to  give  the  vessel  any  further  care,  it  might  be  claimed  that 
his  want  of  care  ought  not  to  be  attributed  to  him  as  a  fault.  In 
reference  to  such  a  case  we  do  not  now  express  any  opinion. 

If  it  could  be  held  that  the  obligation  of  the  defendant  to  take 


564  INSANITY. 

due  care  of  the  vessel  while  she  was  in  his  possession,  uiieler  his  con- 
tract with  the  other  owners,  was  an  obligation  springing  out  of  his 
contract,  and  thus  a  contract  obligation,  such  a  view  of  the  case 
would  not  aid  him.  He  was  sane  when  he  entered  into  the  contract, 
and  his  subsequent  insanity  would  furnish  no  defence  to  an  action 
for  a  breach  of  the  contract.  Oakley  v.  Martin,  11  N.  Y.  625; 
Booth  V.  Spuytcn  Diiyvil  Rolling  Mill  Co.,  60  Id.  487;  Evans  v.  United 
States  Life  Insurance  Co.,  64  Id.  304;   Spalding  v.  Rosa,  71  Id.  40. 

If  it  should  be  found  upon  the  new  trial  of  this  action  that  the 
defendant's  mental  condition  was  produced  wholly  by  his  efforts  to 
save  the  vessel  during  the  storm,  and  it  should,  therefore,  be  held  that 
no  fault  could  be  attributed  to  him  on  account  of  what  he  personally 
did  or  omitted  to  do,  then  the  question  would  still  remain  vi^hether 
the  carelessness  of  his  mate  and  crew,  who  were  his  servants,  could 
not  be  attributed  to  him,  and  liis  liability  be  thus  based  upon  their 
carelessness.  They  did  nothing  whatever  to  save  the  vessel.  They 
did  not  even  expostulate  with  him  or  tender  him  any  advice  or  a 
word  of  caution,  and  yet  the  mate  saw  what  the  captains  of  the  tugs 
saw  at  a  distance,  that  something  w^as  the  matter  with  him.  It  is 
difficult  to  perceive  how  they  could  have  failed  to  see  that  he  was 
either  incompetent  to  manage  the  vessel,  or  that  he  was  willfully 
wrecking  her.  We  leave  the  effect  of  their  conduct  upon  the  defend- 
ant's liability  to  be  determined,  if  it  should  become  necessary,  upon 
the  new  trial,  simply  saying  that  the  question  is  worthy  of  careful 
consideration,  whether  the  defendant  can  allege  his  own  incompe- 
tency, and  at  the  same  time  claim  that  for  any  reason  the  mate 
ought  not  to  have  taken  control  of  the  vessel. 

The  case  of  Hays  v.  -Phcenix  Insurance  Co.  (25  J.  &  S.  199;  aff., 
127  N.  Y.  656),  which  seems  to  have  controlled  the  decision  below, 
is  not  an  authority  for  the  defendant.  There  he  brought  an  action 
against  the  insurance  company  to  recover  the  amount  of  his  insur- 
ance upon  this  vessel,  and  his  mere  carelessness,  whether  sane  or 
insane,  was  no  defence  to  such  an  action.  It  is  an  unquestioned 
rule  of  law  that  an  insurance  company  cannot  successfully  defend 
an  action  upon  its  policy  to  recover  for  a  loss  by  showing  that  the 
insured  destroyed  the  property  while  insane,  or  that  its  destruction 
was  caused  by  the  carelessness  of  his  agents  and  servants.  The 
liability  of  the  insured  to  respond  in  damages  for  the  loss  or  destruc- 
tion of  the  property  of  another  owner  stands  upon  different  princi- 
ples. Liverpool  S.  Co.  v.  PJiKnix  Insurance  Co.,  129  U.  S.  438; 
Karow  v.  Continental  Insurance  Co.,  57  Wis.  56. 

Since  writing  the  above,  suggestions  have  been  made  by  some  of 
my  brethren  which  should  receive  some  attention. 


TORTS    BY    INSANE    PERSONS.  565 

The  fact  that  the  defendant  was  a  part  owner  of  the  vessel  can 
play  no  part  in  this  discussion.  He  did  not  take  the  vessel  as  part 
owner,  but  under  the  contract  with  the  other  owners;  and  as  to 
them,  his  duties  and  obligations  were  such  as  spring  from  the  rela- 
tion created  by  that  contract.  Further,  he  was  the  minority  part 
owner,  and  the  others  were  the  majority  part  owners,  and,  as  such, 
had  the  legal  right  and  the  power  to  control  the  vessel  against  his 
will.  Ward  v.  Ruckman,  36  N.  Y.  36;  Gould  v.  Stanton,  16  Conn. 
12;  The  William  Bagaley,  5  Wall.  406;  McLochlin's  Merchant  Ship- 
ping, 89.  In  Ward  y.  Riickman  it  was  held  that  the  majority  owners 
of  a  vessel  have  the  right  to  displace  the  master  at  their  pleasure, 
though  he  be  in  possession  as  part  owner.  In  making  their  contract 
with  the  defendant,  the  other  part  owners  were  exercising  their 
right  as  the  majority  part  owners.  Non  constat,  but  that  they  would, 
except  for  the  contract,  have  displaced  the  defendant  and  appointed 
some  other  person  master  of  the  vessel.  Therefore,  as  I  have 
before  said,  he  must  be  treated  as  the  charterer,  lessee  or  bailee 
of  the  vessel. 

I  quite  agree,  and  no  one  in  this  case  has  contended  for  more, 
that  the  defendant  was  bound,  in  the  navigation  and  use  of  the 
vessel,  to  bestow  only  ordinary  care,  to  wit:  Such  care  as  a  reason-- 
ably  careful  and  prudent  owner  would  ordinarily  give  to  his  own 
vessel.  Such  is  the  standard  of  care  set  up  for  all  bailees  of  per- 
sonal property  for  hire.  But  what  is  that  standard?  It  is  not  such 
care  as  a  lunatic,  a  blind  man,  a  sick  man,  or  a  man  otherwise  physi- 
cally or  mentally  imperfect  or  impotent  can  give.  Such  a  man  is 
not  the  jural  man  of  ordinary  prudence,  and  he  does  not  furnish  the 
standard.  The  standard  man  is  no  individual  man,  but  an  abstract 
or  ideal  man  of  ordinary  mental  and  physical  capacity  and  ordinary 
prudence.  The  particular  man  whose  duty  of  care  is  to  be  measured 
does  not  furnish  the  standard.  He  may  fall  below  it  in  capacity 
and  prudence  yet  the  law  takes  no  account  of  that,  but  requires 
that  he  should  come  up  to  the  standard  and  his  duty  be  measured 
thereby. 

So  when  we  have  defined,  as  above,  the  duty  of  care  resting  upon 
the  defendant,  we  have  made  no  progress  in  the  solution  of  the 
question  here  involved,  for  it  is  conceded  that  he  took  no  care  what- 
ever. It  is  sought,  however,  to  excuse  him  because  he  was  insane 
and  incapable  of  care;  and  the  question,  and,  in  the  end,  the  sole 
question,  for  us  to  determine,  is  whether  that  excuse  is  a  good  one; 
and  I  have  heard  no  argument  to  sustain  it.  It  is  unquestioned  that 
an  insane  person  is  civilly  liable  for  his  active  torts ;  and  is  there  then 
any  reason  for  saying  that  he  is   not  liable  for  his  negligent  torts? 


566  INSANITY. 

To  uphold  this  judgment,  we  must  engraft  upon  the  general  rule 
the  exception  or  qualification  that  he  is  not  liable  for  his  negligent 
torts.  If  the  defendant  had  taken  a  torch  and  fired  the  vessel,  he 
would  have  been  liable  for  her  destruction,  although  his  act  was 
unconscious  and  accompanied  by  no  free  will.  But  if  he  had  negli- 
gently fired  the  vessel  and  thus  destroyed  her,  being  incapable  from 
his  mental  infirmity  from  exercising  any  care,  the  claim  must  be  that 
he  would  not  be  liable.  Such  a  distinction  is  not  hinted  at  in  any 
authority,  has  no  foundation  whatever  in  principle  or  reason,  and 
cannot  stand  with  authorities  I  have  before  cited. 

My  conclusion,  therefore,  is  that  the  judgment  should  be  reversed 
and  a  new  trial  granted,  costs  to  abide  event. 

All  concur,  except  Peckham,  Gray  and  O'Brien,  JJ.,  dissenting. 

Judgment  reversed.* 


Crimes  by  Insane  Persons. 
PARSONS  V.  STATE. 

8i  Ala.  577.—  1886. 

SoMERViLLE,  J.  In  this  case  the  defendants  have  been  convicted 
of  the  murder  of  Bennett  Parsons,  by  shooting  him  with  a  gun,  one 
of  the  defendants  being  the  wife  and  the  other  the  daughter  of  the 
deceased.  The  defence  set  up  in  the  trial  was  the  plea  of  insanity, 
the  evidence  tending  to  show  that  the  daughter  was  an  idiot, 
and  the  mother  and  wife  a  lunatic,  subject  to  insane  delusions,  and 
that  the  killing  on  her  part  was  the  offspring  and  product  of  those 
delusions. 

The  rulings  of  the  court  raise  some  questions  of  no  less  difficulty 


'  "  Under  the  general  issue  of  slander,  the  insanity  of  the  defendant  at  the 
time  of  speaking  the  words  may  be  given  in  evidence.  The  proof  will  be 
received  in  excuse  or  in  mitigation  of  damages,  according  to  the  circumstances 
of  the  case.  Dickinson  v.  Barber,  9  Mass.  225.  And  it  may  be,  that  partial 
mental  derangement  on  the  subject  to  which  the  words  relate,  may  also  be  given 
in  evidence  under  the  general  issue.  Horner  v.  Marshall's  Admx,  5  Munf.  466." 
—  Sullivan,  J.,  in   Yeates  v.  Reed,  4  Blackf.  463,  465. 

"The  court  observed  that  they  gave  no  opinion,  in  this  case,  how  far,  or  to 
what  degree,  insanity  was  to  be  received  as  an  excuse  in  an  action  for  defama- 
tory words.  Where  the  derangement  was  great  and  notorious,  so  that  the 
speaking  the  words  could  produce  no  effect  on  the  hearers,  it  was  manifest  no 
damage  would  be  incurred.  But  where  the  degree  of  insanity  was  slight,  or  not 
uniform,  the  slander  might  have  its  effect ;  and  it  would  be  for  the  jury  to  judge 
upon  the  evidence  before  them,  and  measure  the  damages  accordingly."— Z?jV>^i«- 
son  v.  Barber,  g  Mass.  225,  227. 


CRIMES    BY   INSANE    PERSONS.  567 

than  of  interest,  for,  as  observed  by  a  distinguished  American  judge, 
"  of  all  medico-legal  questions,  those  connected  with  insanity  are 
the  most  difficult  and  perplexing."  Per  Dillon,  C.  J.,  in  State  v. 
Felter,  35  Iowa,  67.  It  has  become  of  late  a  matter  of  comment 
among  intelligent  men,  including  the  most  advanced  thinkers  in  the 
medical  and  legal  professions,  that  the  deliverances  of  the  law  courts 
on  this  branch  of  our  jurisprudence  have  not  heretofore  been  at  all 
satisfactory,  either  in  the  soundness  of  their  theories,  or  in  their 
practical  application.  The  earlier  English  decisions,  striving  to 
establish  rules  and  tests  on  the  subject,  including  alike  the 
legal  rules  of  criminal  and  civil  responsibility,  and  the  supposed 
tests  of  the  existence  of  the  disease  of  insanity  itself,  are  now 
admitted  to  have  been  deplorably  erroneous,  and,  to  say  noth- 
ing of  their  vacillating  character,  have  long  since  been  abandoned. 
The  views  of  the  ablest  of  the  old  text-writers  and  sages  of  the  law 
were  equally  confused  and  uncertain  in  the  treatment  of  these  sub- 
jects, and  they  are  now  entirely  exploded.  Time  was  in  the  history 
of  our  laws  that  the  veriest  lunatic  was  debarred  from  pleading  his 
providential  affliction  as  a  defence  to  his  contracts.  It  was  said,  in 
justification  of  so  absurd  a  rule,  that  no  one  could  be  permitted  to 
stultify  himself  by  pleading  his  own  disability.  So  great  a  jurist  as 
Lord  Coke,  in  his  attempted  classification  of  madmen,  laid  down  the 
legal  rule  of  criminal  responsibility  to  be  that  one  should  "  wholly 
have  lost  his  memory  and  understanding;  "  as  to  which  Mr.  Erskine, 
when  defending  Hadfield  for  shooting  the  king,  in  the  year  1800, 
justly  observed:  "  No  such  madman  ever  existed  in  the  world." 
After  this  great  and  historical  case,  the  existence  of  delusion  prom- 
ised for  awhile  to  become  the  sole  test  of  insanity,  and  acting  under 
the  duress  of  such  delusion,  was  recognized  in  effect  as  the  legal  rule 
of  responsibility.  Lord  Kenyon,  after  ordering  a  verdict  of  acquittal 
in  that  case,  declared  with  emphasis  that  there  was  "  no  doubt  on 
earth  "  the  law  was  correctly  stated  in  the  argument  of  counsel. 
But,  as  it  was  soon  discovered  that  insanity  often  existed  without  delu- 
sions, as  well  as  delusions  without  insanity,  this  view  was  also  aban- 
doned. Lord  Hale  has  before  declared  that  the  rule  of  responsibility 
was  measured  by  the  mental  capacity  possessed  by  a  child  fourteen 
years  of  age,  and  Mr.  Justice  Tracy,  and  other  judges  had  ventured 
to  decide  that,  to  be  non-punishable  for  alleged  acts  of  crime, 
"  a  man  must  be  totally  deprived  of  his  understanding  and  memory, 
so  as  not  to  know  what  he  was  doing  —  no  more  than  an  infant,  a 
brute,  or  a  wild  beast. —  Arnold's  Case,  16  How.  St.  Tr.  764.  All 
these  rules  have  necessarily  been  discarded  in  modern  times  in  the 
light  of  the  new  scientific  knowledge  acquired  by  a  more  thorough 


568  INSANITY. 

Study  of  the  disease  of  insanity.  In  Bellinghatn  s  Case,  decided  in 
1812,  by  Lord  [Sir  James]  Mansfield  at  the  Old  Bailey,  (Coll. on  Lun. 
630),  the  test  was  held  to  consist  in  a  knowledge  that  murder,  the  crime 
there  committed,  was  "  against  the  laws  of  God  and  nature,"  thus 
meaning  an  ability  to  distinguish  between  right  and  wrong  in  the 
abstract.  This  rule  was  not  adhered  to,  but  seems  to  have  been 
modified  so  as  to  make  the  test  rather  a  knowledge  of  right  and 
wrong  as  applied  to  the  particular  act.— »  Lawson  on  Insanity,  231, 
sec.  ']  et  seq.  The  great  leading  case  on  this  point  in  England  is 
McNaghten's  Case,  decided  in  1843,  before  the  English  House  of 
Lords,  10  CI.  &  F.  200;  s.  c.  2  Lawson'sCr.  Def.  150.  It  was  decided 
by  the  judges  in  that  case,  that,  in  order  to  entitle  the  accused  to 
acquittal,  it  must  be  clearly  proved  that,  at  the  time  of  committing 
the  offence,  he  was  laboring  under  such  a  defect  of  reason,  from 
disease  of  the  mind,  as  not  to  know  the  nature  and  quality  of  the  act 
he  was  doing,  or,  if  he  did,  not  K)  know^  that  what  he  was  doing  was 
wrong.  This  rule  is  commonly  supposed  to  have  heretofore  been 
adopted  by  this  court,  and  has  been  followed  by  the  general  current 
of  American  adjudications.  Boswell  v.  The  State,  63  Ala.  307;  s.  c, 
35  Amer.  Rep.  20;  s.  c,  2  Lawson 's  Cr.  Def,  352;  McAllister  v. 
State,  I'j  Ala.  434;  Lawson  on  Insanity,  219-221,  231. 

In  view  of  these  conflicting  decisions,  and  of  the  new  light  thrown 
on  the  disease  of  insanity  by  the  discoveries  of  modern  psychological 
medicine,  the  courts  of  the  country  may  well  hesitate  before  blindly 
following  in  the  unsteady  footsteps  found  upon  the  old  sandstones 
of  our  common  law  jurisprudence  a  century  ago.  The  trial  court, 
with  prudent  propriety,  followed  the  previous  decisions  of  this  court, 
the  correctness  of  which,  as  to  this  subject,  we  are  now  requested 
to  review. 

We  do  not  hesitate  to  say  that  we  re-open  the  discussion  of  this 
subject  with  no  little  reluctance,  having  long  hesitated  to  disturb 
our  past  decisions  on  this  branch  of  the  law.  Nothing  could  induce 
us  to  do  so  except  an  imperious  sense  of  duty,  which  has  been 
excited  by  a  protracted  investigation  and  study,  impressing  our 
minds  with  the  conviction  that  the  law  of  insanity,  as  declared  by 
the  courts  on  many  points,  and  especially  the  rule  of  criminal 
accountability,  and  the  assumed  tests  of  disease,  to  that  extent 
which  confers  legal  irresponsibility,  have  not  kept  pace  with  the  pro- 
gress of  thought  and  discovery,  in  the  present  advanced  stages  of 
medical  science.  Though  science  has  led  the  way,  the  courts  of 
England  have  declined  to  follow,  as  shown  by  their  adherence  to  the 
rulings  in  McNaghten' s  Case,  emphasized  by  the  strange  declaration 
made  by  the  Lord  Chancellor  of  England,  in  the  House  of  Lords, 


CRIMES   BY    INSANE    PERSONS.  569 

on  so  late  a  day  as  March  11,  1862,  that  "  the  introduction  of 
medical  opinions  and  medical  theories  into  this  subject  has  pro- 
ceeded upon  the  vicious  principle  of  considering  insanity  as  a 
disease." 

It  is  not  surprising  that  this  state  of  affairs  has  elicited  from  a 
learned  law  writer,  who  treats  of  this  subject,  the  humiliating  decla- 
ration, that,  under  the  influence  of  these  ancient  theories,  "  the 
memorials  of  our  jurisprudence  are  written  all  over  with  cases  in 
which  those  who  are  now  understood  to  have  been  insane,  have  been 
executed  as  criminals."  i  Bish.  Cr.  Law  (7th  ed.),  sec.  390.  There 
is  good  reason,  both  for  this  fact,  and  for  the  existence  of  unsatis- 
factory rules  on  this  subject.  In  what  we  say  we  do  not  intend  to 
give  countenance  to  acquittals  of  criminals,  frequent  examoles  of 
which  have  been  witnessed  in  modern  times,  based  on  the  doctrine 
of  moral  or  emotional  insanity,  unconnected  with  mental  disease, 
which  is  not  yet  sufficiently  supported  by  psychology,  or  recognized 
by  law  as  an  excuse  for  crime.  Bosweir s  Case,  supra;  i  Whar.  Cr. 
Law  (9th  ed.),  sec.  43. 

In  ancient  times,  lunatics  were  not  regarded  as  "unfortunate 
sufferers  from  disease,  but  rather  as  subjects  of  demoniacal  posses- 
sion, or  as  self-made  victims  of  evil  passions."  They  were  not 
cared  for  humanely  in  asylums  and  hospitals,  but  were  incarcerated 
in  jails,  punished  with  chains  and  stripes,  and  often  sentenced  to 
death  by  burning  or  the  gibbet.  When  put  on  their  trial,  the  issue 
before  the  court  then  was  not  as  now.  If  acquitted,  they  could  only 
be  turned  loose  on  the  community  to  repeat  their  crimes  without 
molestation  or  restraint.  They  could  not  be  committed  to  hospitals, 
as  at  the  present  day,  to  be  kept  in  custody,  cared  for  by  medical 
attention,  and  often  cured.  It  was  not  until  the  beginning  of  the 
present  century  that  the  progress  of  Christian  civilization  asserted 
itself  by  the  exposure  of  the  then  existing  barbarities,  and  that  the 
outcry  of  philanthropists  succeeded  in  eliciting  an  investigation  of 
the  British  parliament  looking  to  their  suppression.  Up  to  that 
period  the  medical  treatment  of  the  insane  is  known  to  have  been 
conducted  upon  a  basis  of  ignorance,  inhumanity,  and  empiricism. 
Amer.  Cyclop.,  vol.  9  (1874),  title,  Insanity.  Being  punished  for 
wickedness,  rather  than  treated  for  disease,  this  is  not  surprising. 
The  exposure  of  these  evils  not  only  led  to  the  establishment  of 
that  most  beneficent  of  modern  civilized  charities  —  the  hospital 
and  asylum  for  the  insane  — but  also  furnished  hitherto  unequaled 
opportunities  to  the  m^edical  profession  of  investigating  and  treating 
insanity  on  the  pathological  basis  of  its  being  a  disease  of  the 
mind.      Under  these  new  and  more  favorable  conditions  the  medical 


S70  INSANITY. 

jurisprudence  of  insanity  has  assumed  an  entirely  new  phase.  The 
nature  and  exciting  causes  of  tlie  disease  have  been  thoroughly 
studied  and  more  fully  comprehended.  The  result  is  that  the 
"  right  and  wrong  test,"  as  it  is  sometimes  called,  which,  it  must  be 
remembered,  itself  originated  w'ith  the  medical  profession,  in  the 
mere  dawn  of  the  scientific  knowledge  of  insanity,  has  been  con- 
demned by  the  great  current  of  modern  medical  authorities,  who 
believe  it  to  be  "  founded  on  an  ignorant  and  imperfect  view  of  the 
disease."     Encyc.  Brit.  vol.  15  (9th  ed.),  title,  Insanity. 

The  question  then  presented  seems  to  be,  whether  an  old  rule  of 
legal  responsibility  shall  be  adhered  to,  based  on  theories  of  physi- 
cians promulgated  a  hundred  years  ago,  which  refuse  to  recognize 
any  evidence  of  insanity,  except  the  single  test  of  mental  capacity 
to  distinguish  right  and  wrong  —  or  whether  the  courts  will  recog- 
nize as  a  possible  fact,  if  capable  of  proof  by  clear  and  satisfactory 
testimony,  the  doctrine,  now  alleged  by  those  of  the  medical  pro- 
fession who  have  made  insanity  a  special  subject  of  investigation, 
that  the  old  test  is  wrong,  and  that  there  is  no  single  test  by  which 
the  existence  of  the  disease,  to  that  degree  which  exempts  from 
punishment,  can  in  every  case  be  infallibly  detected.  The  inquiry 
must  not  be  unduly  obstructed  by  the  doctrine  of  stare  decisis,  for 
the  life  of  the  common-law  system  and  the  hope  of  its  permanency 
consist  largely  in  its  power  of  adaptation  to  new  scientific  dis- 
coveries, and  the  requirements  of  an  ever  advancing  civilization. 
There  is  inherent  in  it  the  vital  principle  of  juridical  evolution, 
which  preserves  itself  by  a  constant  struggle  for  approximation  to 
the  highest  practical  wisdom.  It  is  not  like  the  laws  of  the  Medes 
and  Persians,  which  could  not  be  changed.  In  establishing  any  new 
rule,  we  should  strive,  however,  to  have  proper  regard  for  two  oppo- 
site aspects  of  the  subject,  lest,  in  the  words  of  Lord  Hale,  "  on 
one  side,  there  be  a  kind  of  inhumanity  towards  the  defects  of 
human  nature ;  or,  on  the  other,  too  great  indulgence  to  great  crimes. " 

It  is  everywhere  admitted,  and  as  to  this  there  can  be  no  doubt, 
that  an  idiot,  lunatic,  or  other  person  of  diseased  mind,  who  is 
afflicted  to  such  extent  as  not  to  know  whether  he  is  doing  right  or 
wrong,  is  not  punishable  for  any  act  which  he  may  do  while  in  that 
state. 

Can  the  courts  justly  say,  however,  that  the  only  test  or  rule  of 
responsibility  in  criminal  cases  is  the  power  to  distinguish  right  from 
wrong,  whether  in  the  abstract,  or  as  applied  to  the  particular  case? 
Or  may  there  not  be  insane  persons,  of  a  diseased  brain,  who,  while 
capable  of  perceiving  the  difference  between  right  and  wrong,  are, 
as  matter  of  fact,  so   far   under   the   duress   of  such  disease  as  to 


CRIMES    BY    INSANE    PERSONS.  571 

destroy  the  power  to  choose  between  right  and  wrong?  Will  the 
courts  assume  as  a  fact,  not  to  be  rebutted  by  any  amount  of  evi- 
dence, or  any  new  discoveries  of  medical  science,  that  there  is,  and 
can  be  no  such  state  of  the  mind  as  that  described  by  a  writer  on 
psychological  medicine  as  one  "  in  which  the  reason  has  lost  its 
empire  over  the  passions,  and  the  actions  by  which  they  are  mani- 
fested, to  such  a  degree  that  the  individual  can  neither  repress  the 
former  nor  abstain  from  the  latter?  "     Dean's  Med.  Jur.  497. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  subject 
by  separating  the  duty  of  the  jury  from  that  of  the  court  in  the  trial 
of  a  case  of  this  character.  The  province  of  the  jury  is  to  deter- 
mine facts;  that  of  the  court  to  state  the  law.  The  rule  xnMcNagh- 
te7i  s  Case  arrogates  to  the  court,  in  legal  effect,  the  right  to  assert, 
as  matter  of  law,  the  following  propositions: 

.  (i).  That  there  is  but  a  single  test  of  the  existence  of  that  degree 
of  insanity,  such  as  confers  irresponsibility  for  crime. 

(2).  That  there  does  not  exist  any  case  of  such  insanity  in  which 
that  single  test  —  the  capacity  to  distinguish  right  from  wrong  — 
does  not  appear. 

(3).  That  all  other  evidences  of  alleged  insanity,  supposed  by 
physicians  and  experts  to  indicate  a  destruction  of  the  freedom  of 
the  human  will,  and  the  irresistible  duress  of  one's  actions,  do  not 
destroy  his  mental  capacity  to  entertain  a  criminal  intent. 

The  whole  difficulty,  as  justly  said  by  the  Supreme  Judicial  Court 
of  New  Hampshire,  is,  that  "  courts  have  undertaken  to  declare  that 
to  be  law  which  is  matter  of  fact."  "  If,"  observes  the  same  court, 
"  the  tests  on  insanity  are  matters  of  law,  the  practice  of  allowing 
experts  to  testify  what  they  are  should  be  discontinued;  if  they  are 
matters  of  fact,  the  judge  should  no  longer  testify  without  being 
sworn  as  a  witness,  and  showing  himself  to  be  qualified  to  testify  as 
an  expert."     State  v.  Pike^  49  N.  H.  399. 

We  first  consider  what  is  the  proper  legal  rule  of  responsibility  in 
criminal  cases. 

No  one  can  deny  that  there  must  be  two  constituent  elements  of 
legal  responsibility  in  the  commission  of  every  crime,  and  no  rule 
can  be  just  and  reasonable  which  fails  to  recognize  either  of  them: 
(i)  Capacity  of  intellectual  discrimination;  and  (2)  freedom  of  will. 
Mr.  Wharton,  after  recognizing  this  fundamental  and  obvious  prin- 
ciple, observes:  "  If  there  be  either  incapacity  to  distinguish 
between  right  and  wrong  as  to  the  particular  act,  or  delusion  as  to 
the  act,  or  inability  to  refrain  from  doing  the  act,  there  is  no 
responsibility."  i  Whar.  Cr.  Law  (9th  ed.),  sec.  33.  Says  Mr. 
Bishop,  in  discussing  this  subject:     "  There  cannot  be,  and  there  is 


572  INSANIIA'. 

not,  in  any  locality,  or  age,  a  law  punishing  men  for  what  they  can- 
not avoid."      1  Bish.  Cr.  Law  (7th  ed.)  sec.  383b. 

If,  therefore,  it  be  true,  as  matter  of  fact,  that  tlic  disease  of 
insanity  can,  in  its  action  on  the  human  brain  through  a  shattered 
nervous  organization,  or  in  any  other  mode,  so  affect  the  mind  as  to 
subvert  the  freedom  of  the  will,  and  thereby  destroy  the  power  of 
the  victim  to  choose  between  the  right  and  wrong,  although  he  per- 
ceive it  —  by  which  we  mean  the  power  of  volition  to  adhere  in 
action  to  the  right  and  abstain  from  the  wrong  —  is  such  a  one 
criminally  responsible  for  an  act  done  under  the  inuflence  of  such 
controlling  disease?  We  clearly  think  not,  and  such  we  believe  to 
be  the  just,  reasonable  and  humane  rule,  towards  which  all  the 
modern  authorities  in  this  country,  legislation  in  England,  and  the 
laws  of  other  civilized  countries  of  the  world,  are  gradually,  but 
surely  tending,  as  we  shall  further  on  attempt  more  fully  to  show. 

We  next  consider  the  question  as  to  the  probable  existence  of  such 
a  disease^  and  the  test  of  its  presence  in  a  given  case. 

It  will  not  do  for  the  courts  to  dogmatically  deny  the  possible 
existence  of  such  a  disease,  or  its  pathological  and  psychical  effects, 
because  this  is  a  matter  of  evidence,  not  of  law,  or  judicial  cogni- 
zance. Its  existence,  and  effect  on  the  mind  and  conduct  of  the 
patient,  is  a  question  of  fact  to  be  proved,  just  as  much  as  the  pos- 
sible existence  of  cholera  or  yellow  fever  formerly  was  before  these 
diseases  became  the  subjects  of  common  knowledge,  or  the  effects 
of  delirium  from  fever,  or  intoxication  from  opium  and  alcholic 
stimulants  would  be.  The  courts  could,  with  just  as  much  propri- 
ety, years  ago,  have  denied  the  existence  of  the  Copernican  system 
of  the  universe,  the  efficacy  of  steam  and  electricity  as  a  motive 
power,  or  the  possibility  of  communication  in  a  few  moments 
between  the  continents  of  Europe  and  America  by  the. magnetic 
telegraph,  or  that  of  the  instantaneous  transmission  of  the  human 
voice  from  one  distant  city  to  another  by  the  use  of  the  telephone. 
These  are  scientific  facts,  first  discovered  by  experts  before  becom- 
ing matters  of  common  knowledge.  So,  in  like  manner,  must  be 
every  other  unknown  scientific  fact  in  whatever  profession  or  depart- 
ment of  knowledge.  The  existence  of  such  a  cerebral  disease  as 
that  which  we  have  described,  is  earnestly  alleged  by  the  superin- 
tendents of  insane  hospitals  and  other  experts,  who  constantly  have 
experimental  dealings  with  the  insane,  and  they  are  permitted  every 
day  to  so  testify  before  juries.  The  truth  of  their  testimony  —  or 
what  is  the  same  thing,  the  existence  or  non-existence  of  such  adis- 
ease  of  the  mind  —  in  each  particular  case,  is  necessarily  a  matter 
for  the  determination  of  the  jury  from  the  evidence. 


CRIMES   BY    INSANE    PERSONS.  573 

So  it  is  equally  obvious  that  the  courts  cannot,  upon  any  sound 
principle,  undertake  to  say  what  are  the  invariable  or  infallible 
tests  of  such  disease.  The  attempt  has  been  repeatedly  made,  and 
has  proved  a  confessed  failure  in  practice.  "  Such  a  test,"  says 
Mr.  Bishop,  "  has  never  been  found,  not  because  those  who  have 
searched  for  it  have  not  been  able  and  diligent,  but  because  it  does 
not  exist."  i  Bish.  Cr.  Law  (7th  ed.)  sec.  381.  In  this  conclu- 
sion. Dr.  Ray,  in  his  learned  work  on  the  Medical  Jurisprudence  of 
Insanity,  fully  concurs.  Ray's  Med.  Jur.  Ins.  p.  39.  The  symp- 
toms and  causes  of  insanity  are  so  variable,  and  its  pathology  so 
complex,  that  no  two  cases  may  be  just  alike.  "The  fact  of  its 
existence,"  says  Dr.  Ray,  "  is  never  established  by  any  single  diag- 
nostic symptom,  but  by  the  whole  body  of  symptoms,  no  particular 
one  of  which  is  present  in  every  case."  Ray's  Med.  Jur.  of  Ins. 
sec.  24.  Its  exciting  causes  being  moral,  psychical,  and  physical, 
are  the  especial  subjects  of  specialists'  study.  What  effect  may  be 
exerted  on  the  given  patient  by  age,  sex,  occupation,  the  seasons, 
personal  surroundings,  hereditary  transmission,  and  other  causes,  is 
the  subject  of  evidence  based  on  investigation,  diagnosis,  observa- 
tion and  experiment.  Peculiar  opportunities,  never  before  enjoyed 
in  the  history  of  our  race,  are  offered  in  the  present  age  for  the  ascer- 
tainment of  these  facts,  by  the  establishment  of  asylums  for  the  cus- 
tody and  treatment  of  the  insane,  which  Christian  benevolence  and 
statesmanship  have  substituted  for  jails  and  gibbets.  The  testimony 
of  these  experts  —  differ  as  they  may  in  many  doubtful  cases  — ■ 
would  seem  to  be  the  best  which  can  be  obtained,  however  unsatis- 
factory it  may  be  in  some  respects. 

In  the  present  state  of  our  law,  under  the  rule  in  McNaghten'' s 
Case,  we  are  confronted  with  this  practical  difficulty,  which  itself 
demonstrates  the  defects  of  the  rule.  The  courts  in  effect  charge 
the  juries,  as  matter  of  law,  that  no  such  mental  disease  exists  as 
that  often  testified  to  by  medical  writers,  superintendents  of  insane 
hospitals,  and  other  experts  —  that  there  can  be,  as  matter  of  scien- 
tific fact,  no  cerebral  defect,  congenital  or  acquired,  which  destroys 
the  patient's  power  of  self  control  —  his  liberty  of  will  and  action  — 
provided  only  he  retains  a  mental  consciousness  of  right  and  wrong. 
The  experts  are  immediately  put  under  oath,  and  tell  the  juries  just 
the  contrary,  as  matter  of  evidence;  asserting  that  no  one  of  ordi- 
nary intelligence  can  spend  an  hour  in  the  wards  of  an  insane  asy- 
lum without  discovering  such  cases,  and,  in  fact,  that  "  the  whole 
management  of  such  asylums  presupposes  a  knowledge  of  right  and 
wrong  on  the  part  of  the  inmates."  Guy  &  F.  on  Forensic  Med. 
220.     The  result  in  practice,  we  repeat,  is,  that  the  courts  charge 


574  INSANITY. 

one  way,  and  the  jury,  following  an  alleged  higher  law  of  humanity, 
find  another,  in  harmony  with  the  evidence. 

In  Bucknill  on  Criminal  Lunacy,  p.  59,  it  is  asserted  as  "  the 
result  of  observation  and  experience,  that  in  all  lunatics,  and  in  the 
most  degraded  idiots,  whenever  manifestations  of  any  mental  action 
can  be  educed,  the  feeling  of  right  and  wrong  may  be  proved  to  exist." 

"  With  regard  to  this  test,"  says  Dr.  Russel  Reynolds,  in  his  work 
on  "  The  Scientific  Value  of  the  Legal  Tests  of  Insanity,"  p.  34 
(London,  1872),  "  I  may  say,  and  most  emphatically,  that  it  is  utterly 
untrustworthy,  because  untrue  to  the  obvious  facts  of  nature." 

In  the  learned  treatise  of  Drs.  Bucknill  and  Tuke  on  "Psychologi- 
cal Medicine,"  p.  269  (4th  ed,  London,  1879),  the  legal  tests  of 
responsibility  are  discussed,  and  the  adherence  of  the  courts  to  the 
right  and  wrong  test  is  deplored  as  unfortunate,  the  true  principle 
being  stated  to  be  "  whether,  in  consequence  of  congenital  defect  or 
acquired  disease,  the  power  of  self-control  is  absent  altogether,  or 
is  so  far  wanting  as  to  render  the  individual  irresponsible."  It  is 
observed  by  the  authors:  "  As  has  again  and  again  been  shown, 
the  unconsciousness  of  right  and  wrong  is  one  thing,  and  the  power- 
lessness,  through  cerebral  defect  or  disease,  to  do  right  is  another. 
To  confound  them  in  an  asylum  would  have  the  effect  of  transfer- 
ring a  considerable  number  of  the  inmates  thence  to  the  treadmill 
or  the  gallows." 

Dr.  Peter  Bryce,  Superintendent  of  the  Alaliama  Insane  Hospital 
for  more  than  a  quarter  century  past,  alluding  to  the  moral  and  dis- 
ciplinary treatment  to  which  the  insane  inmates  are  subjected* 
observes:  "  They  are  dealt  with  in  this  institution,  as  far  as  it  is 
practicable  to  do  so,  as  rational  beings;  and  it  seldom  happens  that 
we  meet  with  an  insane  person  who  cannot  be  made  to  discern,  to 
some  feeble  extent,  his  duties  to  himself  and  others,  and  his  true 
relations  to  society."  Sixteenth  Annual  Rep.  Ala.  Insane  Hosp. 
(1876),  p.  22;  Biennial  Rep.  (1886),  pp.  12-18. 

Other  distinguished  writers  on  the  medical  jurisprudence  of 
insanity  have  expressed  like  views,  with  comparative  unanimity. 
And  nowhere  do  we  find  the  rule  more  emphatically  condemned  than 
by  those  who  have  the  practical  care  and  treatment  of  the  insane  in 
the  various  lunatic  asylums  of  every  civilized  country.  A  notable 
instance  is  found  in  the  following  resolution  unanimously  passed  at 
the  annual  meeting  of  the  British  Association  of  Medical  Officers  of 
Asylums  and  Hospitals  for  the  Insane,  held  in  London,  July  14, 
1864,  where  there  were  present  fifty-four  medical  officers: 

'■'■Resolved^  That  so  much  of  the  legal  test  of  the  mental  condition 
of  an  alleged  criminal  lunatic  as  renders  him  a  responsible  agent, 


CRIMES    BY    INSANE    PERSONS.  575 

because  he  knows  the  difference  between  right  and  wrong,  is 
inconsistent  with  the  fact,  well  known  to  every  member  of  this  meet- 
ing, that  the  power  of  distinguishing  between  right  and  wrong  exists 
very  frequently  in  those  who  are  undoubtedly  insane,  and  is  often 
associated  with  dangerous  and  uncontrollable  delusions."  Judicial 
Aspects  of  Ins.  (Ordronaux,  1877),  423-424. 

These  testimonials  as  to  a  scientific  fact  are  recognized  by  intelli- 
gent men  in  the  affairs  of  every  day  business,  and  are  constantly 
acted  on  by  juries.  They  cannot  be  silently  ignored  by  judges. 
Whether  established  or  not,  there  is  certainly  respectable  evidence 
tending  to  establish  it,  and  this  is  all  the  courts  can  require. 

Nor  are  the  modern  law  writers  silent  in  their  disapproval  of  the 
alleged  test  under  discussion.  It  meets  with  the  criticism  or  con- 
demnation of  the  most  respectable  and  advanced  in  thought  among 
them,  the  tendency  being  to  incorporate  in  the  legal  rule  of  respon- 
sibility "  not  only  the  knowledge  of  good  and  evil,  but  the  power  to 
choose  the  one,  and  refrain  from  the  other."  Browne's  Med.  Jur. 
of  Insanity,  sec.  13  et  seq.,  sec.  18;  Ray's  Med.  Jur.  sec.  16-19; 
Whart.  &  Stint's  Med.  Jur.  sec.  59;  i  Whart.  Cr.  Law  (9th  ed.), 
sees.  2,2,,  43,  45;  I  Bish.  Cr.  Law  (7th  ed.),  sec.  386  et  seq.j  Judi- 
cial Aspects  of  Insanity  (Ordronaux),  419;  i  Greenl.  Ev.  sec.  372; 
I  Steph.  Hist.  Cr.  Law,  sec.  168;  Amer.  Law  Rev.  vol.  4  (1869-70), 
236  et  seq. 

The  following  practical  suggestion  is  made  in  the  able  treatise  of 
Balfour  Browne  above  alluded  to:  "  In  a  case  of  alleged  insanity, 
then,"  he  says,  "  if  the  individual  suffering  from  enfeeblement  of 
intellect,  delusion,  or  any  other  form  of  mental  aberration,  was 
looked  upon  as,  to  the  extent  of  this  delusion,  under  the  influence 
of  duress  (the  dire  duress  of  disease),  and  in  so  far  incapacitated  to 
choose  the  good  and  eschew  the  evil,  in  so  far,  it  seems  to  us,"  he 
continues,  "  would  the  requirements  of  the  law  be  fulfilled;  and  in 
that  way  it  would  afford  an  opening,  by  the  evidence  of  experts,  for 
the  proof  of  the  amount  of  self-duress  in  each  individual  case,  and 
thus  alone  can  the  criterion  of  law  and  the  criterion  of  the  inductive 
science  of  medical  psychology  be  made  to  coincide."  Med  .Jur.  of 
Ins.  (Browne),  sec.  18. 

This,  in  our  judgment,  is  the  practical  solution  of  the  difficulty 
before  us,  as  it  preserves  to  the  courts  and  the  juries,  respectively, 
a  harmonious  field  for  the  full  assertion  of  their  time-honored 
functions. 

So  great,  it  may  be  added,  are  the  embarrassments  growing  out  of 
the  old  rule,  as  expounded  by  the  judges  in  the  House  of  English 
Lords,  that,  in  March,  1874,  a  bill  was  brought  before  the  House  of 


576 


INSANITY. 


Commons,  supposed  to  have  been  drafted  by  the  learned  counsel  for 
the  Queen,  Mr.  Fitzjames  Stephen,  which  introduced  into  the  old 
rule  the  new  element  of  an  absence  of  the  power  of  self-control, 
produced  by  diseases  affecting  the  mind,  and  this  proposed  alteration 
of  the  law  was  cordially  recommended  by  the  late  Chief  Justice 
Cockburn,  his  only  objection  being  that  the  principle  was  proposed 
to  be  limited  to  the  case  of  homicide,  i  Whart.  Cr.  Law,  (9th  ed.), 
sec.  45,  p.  66,  note  i;  Browne's  Med.  Jur.  of  Insan.,  sec.  10,  note  i. 

There  are  many  well  considered  cases  which  support  these  views. 

\^Here  follows  a  discussion  of  the  folhnving  cases:  Case  of  Hadfield^ 
27  How.  St.  Tr.  1282;  U.  S.  v.  Lawrence^  4  Cr.  C.  C.  Rep.  518;  U  S. 
V.  Gi/itcaii,  10  Fed.  Rep.  161;  Rrx\.  Oxford,  2  C.  «S:  P.  225;  State 
V.  Fclter,  35  Iowa,  68;  Hopps  v.  People,  31  111.  385;  Bradley  v.  State^ 
31  Ind.  492;  Harris  V.  State,  18  Tex.  Ct.  App.  287;  State  v.  Pike, 
49  N.  H.  399;  State  v.  Jones,  50  N.  H.  369.] 

Numerous  other  cases  could  be  cited  bearing  on  this  particular 
phase  of  the  law,  and  supporting  the  above  views  with  more  or  less 
clearness  of  statement.  That  some  of  these  cases  adopt  the  extreme 
view,  and  recognize  moral  insanity  as  a  defence  to  crime,  and  others 
adopt  a  measure  of  proof  for  the  establishment  of  insanity  more 
liberal  to  the  defendant  than  our  own  rule,  can  neither  lessen  their 
weight  as  authority,  nor  destroy  the  force  of  their  logic.  Many  of 
them  go  further  on  each  of  these  points  than  this  court  has  done, 
and  are,  therefore,  stronger  authorities  than  they  would  otherwise 
be  in  the  support  of  our  views.  Krielv.  Com.,  5  Bush.  (Ky.)  362; 
Smith  V.  Com.,  i  Duv.  (Ky.)  224;  Dejarnette  v.  Com.,  75  Va.  867; 
Coyle  N .  Com.,  100  Pa.  St.  573;  Cunningham  v.  State,  56  Miss.  269; 
Cotn.  V.  Rogers,  7  Mete.  500;  State  v.  Johnson,  40  Conn.  156;  Ander- 
son V.  State,  43  Conn.  514,  525;  Buswell  on  Ins.  sec.  439  et  seq.j  State 
V.  McWhorter,  46  Iowa,  88. 

The  law  of  Scotland  is  in  accord  with  the  English  law  on  this  sub- 
ject, as  might  well  be  expected.  The  Criminal  Code  of  Germany, 
however,  contains  the  following  provision,  which  is  said  to  have 
been  the  formulated  result  of  a  very  able  discussion  both  by  the  phy- 
sicians and  lawyers  of  that  country:  "  There  is  no  criminal  act  when 
the  actor  at  the  time  of  the  offence  is  in  a  state  of  unconsciousness, 
or  morbid  disturbance  of  the  mind,  through  which  the  free  deter- 
mination of  his  will  is  excluded."  Ency.  Brit.  (9th  ed.),  vol.  9,  p. 
112;  citing  Crim.  Code  of  Germany  (sec.  51,  R.  G.  B.) 

The  Code  of  France  provides :  ' '  There  can  be  no  crime  or  offence 
if  the  accused  was  in  a  state  of  madness  at  the  time  of  the  act." 
For  some  time  the  French  tribunals  were  inclined  to  interpret  this 
law  in  such  a  manner  as  to  follow  in  substance  the  law  of  England. 


CRIMES    BY   INSANE    PERSONS.  577 

But  that  construction  has  been  abandoned,  and  the  modern  view 
of  the  medical  profession  is  now  adopted  in  that  country. 

It  is  no  satisfactory  objection  to  say  that  the  rule  above  announced 
by  us  is  of  difficult  application.  The  rule  in  McNaghten  s  Case,  supra, 
is  equally  obnoxious  to  a  like  criticism.  The  difficulty  does  not  lie 
in  the  rule,  but  is  inherent  in  the  subject  of  insanity  itself.  The 
practical  trouble  is  for  the  courts  to  determine  in  what  particular 
cases  the  party  on  trial  is  to  be  transferred  from  the  category  of 
sane  to  that  of  insane  criminals  —  where,  in  other  words,  the  border 
line  of  punishability  is  adjudged  to  be  passed.  But,  as  has  been  said 
in  reference  to  an  every-day  fact  of  nature,  no  one  can  say  where 
twilight  ends  or  begins,  but  there  is  ample  distinction,  nevertheless, 
between  day  and  night.  We  think  we  can  safely  rely  in  this  matter 
upon  the  intelligence  of  our  juries,  guided  by  the  testimony  of  men 
who  have  practically  made  a  study  of  the  disease  of  insanity;  and 
enlightened  by  a  conscientious  des'ire,  on  the  one  hand,  to  enforce 
the  criminal  laws  of  the  land,  and  on  the  other,  not  to  deal  harshly 
with  any  unfortunate  victim  of  a  diseased  mind,  acting  without  the 
light  of  reason,  or  the  power  of  volition. 

Several  rulings  of  the  court,  including  especially  the  one  given  ex 
mero  motu,  and  the  one  numbered  five,  were  in  conflict  with  this 
view,  and  for  these  errors  the  judgment  must  be  reversed.  The 
charges  requested  by  defendant  were  all  objectionable  on  various 
grounds.  Some  of  them  were  imperfect  statements  of  the  rules 
above  announced;  some  were  argumentative,  and  others  were  mis- 
leading by  reason  of  ignoring  one  or  more  of  the  essentials  of  crimi- 
nal irresponsibility,  as  explained  in  the  foregoing  opinion. 

It  is  almost  needless  to  add  that  where  one  does  not  act  under  the 
duress  of  a  diseased  mind,  or  insane  delusion,  but  from  motives  of 
anger,  revenge  or  other  passion,  he  cannot  claim  to  be  shielded  from 
punishment  for  crime  on  the  ground  of  insanity.  Insanity  proper, 
is  more  or  less  a  mental  derangement,  coexisting  often,  it  is  true, 
with  a  disturbance  of  the  emotions,  affections  and  other  moral 
powers.  A  mere  moral,  or  emotional  insanity,  so-called,  uncon- 
nected with  disease  of  the  mind,  or  irresistible  impulse  resulting 
from  mere  moral  obliquity,  or  wicked  propensities  and  habits,  is 
not  recognized  as  a  defence  to  crime  in  our  courts,  i  Whar.  Cr. 
Law  (9th  ed.),  sec.  46;  Boswellv.  State,  63  Ala.  307,  35  Amer.  Rep. 
20;  Fordv.  State,  71  Ala.  385. 

The  charges  refused  by  the  court  raise  the  question  as  to  how  far 

one  acting  under  the  influence  of  an  insane  delusion  is  to  be  exempted 

from  criminal  accountability.     The  evidence  tended   to  show  that 

one  of  the  defendants,    Mrs.    Nancy   J.    Parsons,   acted   under  the 

[Domestic  Relations  — 37.] 


578  INSANITY. 

influence  of  an  insane  delusion  that  the  deceased,  whom  she  assisted 
in  killing,  possessed  supernatural  power  to  afflict  her  with  disease 
and  to  take  her  life  by  some  "  supernatural  trick;"  that  by  means 
of  such  power  the  deceased  had  caused  defendant  to  be  in  bad  health 
for  a  long  time,  and  that  she  acted  under  the  belief  that  she  was  in 
great  danger  of  the  loss  of  her  life  from  the  conduct  of  deceased 
operating  by  means  of  such  supernatural  power. 

The  rule  in  McNaghtens  Case,  as  decided  by  the  English  judges, 
and  supposed  to  have  been  adopted  by  the  court,  is  that  the  defence 
of  insane  delusion  can  be  allowed  to  prevail  in  a  criminal  case  only 
when  the  imaginary  state  of  facts  would,  if  real,  justify  or  excuse 
the  act;  or,  in  the  language  of  the  English  judges  themselves,  the 
defendant  "  must  be  considered  in  the  same  situation  as  to  responsi- 
bility, as  if  the  facts  with  respect  to  which  the  delusion  exists  were 
real."     BosivelV s  Case,  63  Ala.  307.     It  is  apparent,   from  what  we 
have  said,  that  this  rule  cannot  be  correct,  as  applied  to  all  cases  of 
this  nature,  even  limiting  it,  as  done  by  the  English  judges,  to  cases 
where  one  "  labors  under  partial  delusion,  and  is  not  in  other  respects 
insane."     McNaghtens  Case,  10  CI.  <S:  P.  200;  s.  c,  2  Lawson's  Cr. 
Def.  150.     It  holds  a  partially  insane  person  as  responsible  as  if  he 
were  entirely  sane,  and  it  ignores  the  possibility  of  crime  being  com- 
mitted under  the  duress  of  an  insane  delusion,   operating  upon  a 
human  mind,   the  integrity  of  which  is  destroyed   or  impaired  by 
disease,  except,  perhaps,  in  cases  where  the  imaginary  state  of  facts, 
if  real,  would  excuse  or  justify  the  act  done  under  their  influence. 
Field's  Med.  Leg.  Guide,  101-104;  Guy  &  F.  on  Forensic  Med.  220. 
If  the  rule  declared  by  the  English  judges  be  correct,  it  necessarily 
follows  that  the   only  possible   instance   of   excusable   homicide   in 
cases  of  delusional  insanity  would  be,  where  the  delusion,  if  real, 
would  have   been  such  as  to  create,  in  the  mind  of  a  reasonable 
man,  a  just  apprehension  of  imminent  peril  to  life  or  limb.     The  per- 
sonal fear,  or  timid  cowardice  of  the  insane  man,  although  created  by 
disease  acting  through  a  prostrated  nervous  organization,  would  not 
excuse  undue  precipitation  of  action  on  his   part.      Nothing  would 
justify  assailing   his   supposed   adversary    except    an    overt  act,   or 
demonstration  on  the  part  of  the  latter,  such  as,  if  the  imaginary 
facts  were  real,  would,  under  like  circumstances,  have  justified  a  man 
perfectly  sane  in  shooting  or  killing.     If  he  dare  fail  to  reason,  on 
the  supposed  facts  embodied  in  the  delusion,  as  perfectly  as  a  sane 
man  could  do  on  a  like  state  of  realties,  he  receives  no  mercy  at  the 
hands  of   the  law.     It  exacts  of  him  the  last  pound   of  flesh.      It 
would  follow  also,  under  this  rule,  that  the  partially   insane   man, 
afflicted  with  delusions,  would  no  more  be  excusable  than  a  sane  man 


CRIMES    BY    INSANE    PERSONS.  579 

would  be  if,  perchance,  it  was  by  his  fault  the  difficulty  was  pro- 
voked, whether  by  word  or  deed;  or,  if,  in  fine,  he  may  have  been 
so  negligent  as  not  to  have  declined  combat  when  he  could  do  so 
safely,  without  increasing  his  peril  of  life  or  limb.  If  this  has  been 
the  law  heretofore,  it  is  time  it  should  be  so  no  longer.  It  is  not 
only  opposed  to  the  known  facts  of  modern  medical  science,  but 
it  is  a  hard  and  unjust  rule  to  be  applied  to  the  unfortunate  and  provi- 
dential victims  of  disease.  It  seems  to  be  a  little  less  than  inhu- 
mane, and  its  strict  enforcement  would  probably  transfer  a  large 
percentage  of  the  inmates  of  our  Insane  Hospital  from  that  institution 
to  hard  labor  in  the  mines  or  the  penitentiary.  Its  fallacy  consists  in 
the  assumption  that  no  other  phase  of  delusion,  proceeding  from  a 
diseased  brain,  can  so  destroy  the  volition  of  an  insane  person  as 
to  render  him  powerless  to  do  what  he  knows  to  be  right,  or  to  avoid 
doing  what  he  may  know  to  be  wrong.  This  inquiry,  as  we  have 
said,  and  here  repeat,  is  a  question  of  fact  for  the  determination  of 
the  jury  in  each  particular  case.  It  is  not  a  matter  of  law  to  be 
decided  by  the  courts.  We  think  it  sufficient  if  the  insane  delusion  — 
by  which  we  mean  the  delusion  proceeding  from  a  diseased  mind — ■ 
sincerely  exists  at  the  time  of  committing  the  alleged  crime,  and 
the  defendant,  believing  it  to  be  real,  is  so  influenced  by  it  as  either 
to  render  him  incapable  of  perceiving  the  true  nature  and  quality  of 
the  act  done,  by  reason  of  the  depravation  of  the  reasoning  faculty, 
or  so  subverts  his  will  r.s  to  destroy  his  free  agency  by  rendering 
him  powerless  to  resist  by  reason  of  the  duress  of  the  disease.  In 
such  a  case,  in  other  words,  there  must  exist  either  one  of  two 
conditions:  (i)  Such  mental  defect  as  to  render  the  defendant 
unable  to  distinguish  between  right  and  wrong  in  relation  to  the 
particular  act;  or  (2)  the  overmastering  of  defendant's  will  in  con- 
sequence of  the  insane  delusion  under  the  influence  of  which  he  acts, 
produced  by  disease  of  the  mind  or  brain.  Rex  v.  Hadfield,  37  How. 
St.  Tr.  1282,  s.  c,  2  Lawson's  Cr.  Def.  201;  Roberts  v.  State^  3  Ga. 
310;  Com.  v.  Rogers,  7  Mete.  500;  States.  Windsor,  5  Harr.  512; 
Buswell  on  Insan.  sees.  434  and  440;  Amer.  Law  Review,  vol.  4 
(1869-70),  pp.  236,  252. 

In  conclusion  of  this  branch  of  the  subject,  that  we  may  not  be 
misunderstood,  we  think  it  follows  very  clearly,  from  what  we  have 
said,  that  the  inquiries  to  be  submitted  to  the  jury,  then,  in  every 
criminal  trial  where  the  defence  of  insanity  is  interposed,  are  these: 

1.  Was  the  defendant  at  the  time  of  the  commission  of  the  alleged 
crime,  as  matter  of  fact,  afflicted  with  a  disease  of  the  mind,  so  as 
to  be  either  idiotic,  or  otherwise  insane  ? 

2.  If  such  be  the  case,  did   he   know  right  from  wrong  as  applied 


580  INSANITY. 

to  the  particular  act  in  question?    If  he  did  not  have  such  knowledge, 
he  is  not  legally  responsible. 

3.  If  he  did  have  such  knowledge,  he  may  nevertheless  not  be 
legally  responsible  if  the  two  following  conditions  concur: 

(i).  If,  by  reason  of  the  duress  of  such  mental  disease,  he  had 
so  far  lost  the  power  to  choose  between  the  right  and  wrong,  and  to 
avoid  doing  the  act  in  question,  as  that  his  free  agency  was  at  the 
time  destroyed. 

(2).  And  if,  at  the  time,  the  alleged  crime  was  so  connected  with 
such  mental  disease,  in  the  relation  of  cause  and  effect,  as  to  have 
been  the  product  of  it  solely. 

The  rule  announced  in  BoswelV s  Case,  63  Ala.  308,  supra,  as  stated 
in  the  fourth  head  note,  is  in  conflict  with  the  foregoing  conclusions, 
and  to  that  extent  is  declared  incorrect,  and  is  not  supported  by  the 
opinion  in  that  case  otherwise  than  by  dictum. 

We  adhere,  however,  to  the  rule  declared  by  this  court  in  BoswelV s 
Case,  supra,  and  followed  in  Ford's  Case,  71  Ala.  385,  holding  that 
when  insanity  is  set  up  as  a  defence  in  a  criminal  case,  it  must  be 
established  to  the  satisfaction  of  the  jury,  by  a  preponderance  of  the 
evidence;  and  a  reasonable  doubt  of  the  defendant's  sanity,  raised 
by  all  the  evidence,  does  not  authorize  an  acquittal. 

The  judgment  is  reversed  and  the  cause  remanded.  In  the  mean- 
while the  prisoners  will  be  held  in  custody  until  discharged  by  due 
process  of  law. 

Stone,  C.  J.,  dissents,  in  part. 

******** 

I  summarize  my  views  of  the  question  I  propose  to  discuss,  in  the 

following  brief  paragraphs: 

1.  Insanity  when  relied  on  as  a  defence  to  a  prosecution  for  crime, 
is  a  mixed  question  of  law  and  fact. 

2.  It  is  a  perfect  defence  to  an  accusation  of  crime,  if  the  accused, 
at  the  time  he  committed  the  act,  was  afflicted  with  a  mental  disease 
to  such  extent,  as  to  render  him  incapable  of  determining  between 
right  and  wrong,  or  of  perceiving  the  true  nature  and  quality  of  the 

act  done. 

3.  When  it  is  satisfactorily  shown  that  the  accused  was  mentally 
diseased  at  the  time  he  did  the  act,  charged  as  an  offence,  and  that 
he  did  the  act  in  consequence  solely  of  such  mental  disease,  without 
which  it  would  not  have  been  done,  this  is  a  complete  defence,  even 
though  the  defendant  knew  the  act  was  wrong. 

'  The  dissenting  opinion  is  equally  exhaustive;  but  the  extracts  given  will 
show  its  general  tenor  and  its  conclusions. 


CRIMES   BY    INSANE    PERSONS.  58 1 

4.  When  at  the  time  of  committing  the  act  charged,  the  defendant 
was  laboring  under  a  disease  of  the  mind,  known  as  delusion,  illusion, 
or  hallucination,  and  the  act  done  was  solely  the  result  of  such 
mental  disease,  connected  with  and  growing  out  of  it  as  effect  fol- 
lows cause,  and  without  which  the  act  would  not  have  been  done, 
the  defendant  should  be  acquitted  on  the  plea  of  insanity.  Whar. 
Cr.  Ev.,  sec.  336;  2  Greenl.  Ev.,  sec.   372. 

5.  No  form  of  moral  or  emotional  insanity  is  a  defence  against 
a  criminal  accusation. 

I  have  considered  the  very  able  opinion  of  my  brother  Somerville 
with  great  care,  and  I  diffei  from  what  I  understand  to  be  its 
declared  principles  only  to  a  limited  e.xtent,  to  be  commented  upon 
further  on.  I  have  also  read  the  legal  authorities  he  relies  on,  but 
have  not  read,  on  this  subject,  the  other  authorities  he  refers  to. 
Some  of  them,  I  fear,  deal  too  much  in  the  abstruse  and  meta- 
physical—  refine  too  much  —  to  become  safe  guides  in  judicial  admin- 
istration. Legal  principles,  when  enunciated  for  the  government  of 
juries,  should,  if  possible,  be  expressed  so  simply  and  clearly  as  to 
be  easily  understood  by  the  class  of  men  who  generally  perform 
that  service.  Less  than  this  is  not  properly  instructing  juries  on 
questions  of  law,  pertinent  to  the  issues  they  are  sworn  to  try. 

Idiffer  with  my  brother  Somerville  in  the  interpretation  of  some  of 
the  legal  authorities  he  relies  on  as  supporting  his  views,  and,  as  to 
others,  in  the  estimate  he  places  upon  them  as  authority.  This  court 
has  repudiated  the  doctrine  of  moral  insanity  as  a  defence  for  con- 
duct otherwise  criminal;  and  we  hold  that  insanity  is  a  defence  to 
be  affirmatively  establish  by  proof. 

******** 

I  regret  the  necessity  I  have  felt  resting  on  me  of  differing  with  my 
brothers  in  this  case.  I  regret  what  I  conceived  to  be  a  duty 
to  express  my  views  so  much  at  length.  On  a  question  of  less 
importance  I  would  not  have  done  so.  I  have  feared,  however,  and 
still  fear,  that  the  effect  of  their  ruling  will  be  to  let  in  many  of  the 
evils  which  result  from  allowing  the  defence  of  emotional  insanity. 
I  acquit  them  of  all  intention  to  alter  the  rule  of  this  court  on  that 
subject.  Still,  I  think  the  line  cannot  be  too  clearly  and  sharply 
drawn  which  separates  the  pitiable,  unfortunate  victim  of  diseased 
mental  faculties  from  the  recklessly  depraved,  whose  chief  evidence 
of  insanity  is  found  in  the  causeless  atrocity  of  their  crimes.  Human 
life  has  become  all  too  cheap;  and  while  we  spread  the  mantle  of 
mercy  over  the  criminally  irresponsible,  the  lawless  should  be  made 
to  feel  that  the  way  of  the  transgressor  is  hard.  The  terror  of  the 
law  may  thus  become  a  minister  of  peace. 


582  INSANITY. 

Capacitv  to    Testify. 

DISTRICT  OF  COLUMBIA  v.  ARMES. 

107  U.  S.  519. —  1882. 

Mr.  Justice  Field.  This  was  an  action  to  recover  damages  for 
injuries  received  by  the  plaintiff's  intestate,  Du  Bose,  from  a  fall 
caused  by  a  defective  sidewalk  in  the  city  of  Washington.  In  1873, 
the  board  of  public  works  of  the  city  caused  the  grade  of  the  car- 
riageway of  Thirteenth  street,  between  F  and  G  streets,  to  be  lowered 
several  feet.  The  distance  between  the  curbstone  of  the  carriage- 
way and  the  line  of  the  adjacent  buildings  was  thirty-six  feet.  At 
the  time  the  accident  to  the  deceased  occurred,  this  portion  of  the 
street  —sidewalk  it  may  be  termed,  to  designate  it  from  the  carriage- 
way, although  only  a  part  of  it  is  given  up  to  foot  passengers  —  was, 
for  forty-eight  feet  north  of  F  street,  lowered  in  its  whole  width  to 
the  same  grade  as  the  carriageway.  But  for  some  distance  beyond 
that  point,  only  twelve  feet  of  the  sidewalk  was  cut  down,  thus 
leaving  an  abrupt  descent  of  about  two  feet  at  a  distance  of  twelve 
feet  from  the  curb.  At  this  descent  —  from  the  elevated  to  the 
lowered  part  of  the  sidewalk  —  there  were  three  steps,  but  the  place 
was  not  guarded  either  at  its  side  or  end.  Nothing  was  placed  to 
warn  foot-passengers  of  the  danger. 

On  the  night  of  February  21,  1877,  Du  Bose,  a  contract  surgeon 
of  the  United  States  army,  while  walking  down  Thirteenth  street, 
towards  F  street,  fell  down  this  descent,  and,  striking  upon  his  knees, 
received  a  concussion  which  injured  his  spine  and  produced  partial 
paralysis,  resulting  in  the  impairment  of  his  mind  and  ultimately  in 
his  death,  which  occurred  since  the  trial  below. 

The  present  action  was  for  the  injury  thus  sustained.  He  was 
himself  a  witness,  and  it  appears  from  his  testimony  that  his  mind 
was  feeble.  His  statement  was  not  always  as  direct  and  clear  as 
would  be  expected  from  a  man  in  the  full  vigor  of  his  mind.  Still 
it  was  not  incoherent,  nor  unintelligible,  but  evinced  a  full  knowledge 
of  the  matters  in  relation  to  which  he  was  testifying.  A  physician 
of  the  government  hospital  for  the  insane,  to  which  the  deceased 
was  taken  two  years  afterwards,  testified  that  he  was  affected  with 
acute  melancholy;  that  sometimes  it  was  impossible  to  get  a  word 
from  him;  that  his  memory  was  impaired,  but  that  he  was  able  to 
make  a  substantially  correct  statement  of  facts  which  transpired 
before  the  injury  took  place,  though,  from  the  impairment  of  his 
memory,  he  might  leave  out  some  important  part,  that  there  would 


CAPACITY    TO    TESTIFY.  583 

be  some  coftfusion  of  ideas  in  his  mind,  and  that  he  should  not  be 
held  responsible  for  any  criminal  act.  A  physician  of  the  Freedmen's 
Hospital,  in  which  the  deceased  was  at  one  time  a  patient  after  his 
injuries,  testified  to  a  more  deranged  condition  of  his  mind,  and  that 
he  was,  when  there  in  June,  1879,  insane.  He  had  attempted  to 
commit  suicide,  and  had  stuck  a  fork  into  his  neck  several  times. 
Upon  this,  and  other  testimony  of  similar  import,  and  the  feebleness 
exhibited  by  the  deceased  on  the  stand,  the  counsel  for  the  city 
requested  the  court  to  withdraw  his  testimony  from  the  jury,  on  the 
ground  that  his  mental  faculties  were  so  far  impaired  as  to  render 
him  incompetent  to  testify  as  a  witness.  This  the  court  refused  to 
do,  but  instructed  the  jury  that  his  testimony  must  be  taken  with 
some  allowance,  considering  his  condition  of  mind  and  his  incapacity 
to  remember  all  the  circumstances  which  might  throw  some  light  on 
his  present  condition.  This  refusal  and  ruling  of  the  court  consti- 
tute the  first  error  assigned. 

The  ruling  of  the  court  and  its  instruction  to  the  jury  were  entirely 
correct.  It  is  undoubtedly  true  that  a  lunatic  or  insane  person  may, 
from  the  condition  of  his  mind,  not  be  a  competent  witness.  His 
incompetency  on  that  ground,  like  incompetency  for  any  other  cause, 
must  be  passed  upon  by  the  court,  and  to  aid  its  judgment,  evidence 
of  his  condition  is  admissible.  But  lunacy  or  insanity  assumes  so 
many  forms,  and  is  often  partial  in  its  extent,  being  frequently  con- 
fined to  particular  subjects,  whilst  there  is  full  intelligence  on  others, 
that  the  power  of  the  court  is  to  be  exercised  with  the  greatest 
caution.  The  books  are  full  of  cases  where  persons  showing  mental 
derangement  on  some  subjects  evince  a  high  degree  of  intelligence 
and  wisdom  on  others.  The  existence  of  partial  insanity  does  not 
unfit  individuals  so  affected  for  the  transaction  of  business  on  all 
subjects,  nor  from  giving  a  perfectly  accurate  and  lucid  statement  of 
what  they  have  seen  or  heard.  In  a  case  in  the  Prerogative  Court 
of  Canterbury,  counsel  stated  that  partial  insanity  w^as  unknown  to 
the  law  of  England;  but  the  court  replied  that  if  by  this  was  meant 
that  the  law  never  deems  a  person  both  sane  and  insane  at  one  and 
the  same  time  upon  one  and  the  same  subject,  the  assertion  was  a 
truism;  and  added:  "  If,  by  that  position,  it  be  meant  and  intended 
that  the  law  of  England  never  deems  a  party  both  sane  and  insane  at 
different  times  upon  the  same  subject;  and  both  sane  and  insane  at 
the  same  time  upon  different  subjects;  (the  most  usual  sense,  this 
last  of  the  phrase  of  '  partial  insanity'),  there  can  scarcely  be  a  position 
more  destitute  of  legal  foundation;  or  rather,  there  can  scarcely  be 
one  more  adverse  to  the  stream  and  current  of  legal  authority." 
Deiv  V.  Clark,  3   Add.  E.  R.  79,  94. 


584 


IXSAN'ITV 


The  general  rule,  therefore,  is,  that  a  lunatic  or  person  affected 
with  insanity  is  admissible  as  a  witness  if  he  have  suflicient  under- 
standing to  apprehend  the  obligation  of  an  oatli,  and  to  be  capable 
of  giving  a  correct  account  of  the  matters  which  he  has  seen  or  heard 
in  reference  to  the  questions  at  issue;  and  whether  he  have  that 
understanding  is  a  question  to  be  determined  by  the  court,  upon 
examination  of  the  party  himself,  and  any  competent  witnesses  who 
can  speak  to  the  nature  and  extent  of  his  insanity.  Such  was  the 
decision  of  the  Court  of  Criminal  Appeal  in  England,  in  the  case  of 
Reg  V.  Hill,  5  Cox.  Crim.  Cas.  259.  There  the  prisoner  had  been 
convicted  of  manslaughter;  and  on  the  trial  a  witness  had  been 
admitted  whose  incompetency  was  urged  on  the  ground  of  alleged 
insanity.  He  was  a  patient  in  a  lunatic  asylum,  under  the  delusion 
that  he  had  a  number  of  spirits  about  him  which  were  continually 
talking  to  him,  but  the  medical  superintendent  testified  that  he  was 
capable  of  giving  an  account  of  any  transaction  that  happened 
before  his  eyes;  that  he  had  always  found  him  so;  and  that  it  was 
solely  with  reference  to  the  delusion  about  the  spirits  that  he  con- 
sidered him  a  lunatic.  The  witness  himself  was  called,  and  he  testi- 
fied as  follows:  "  I  am  fully  aware  I  have  a  spirit,  and  twenty 
thousand  of  them.  They  are  not  all  mine.  1  must  inquire.  I  can 
where  I  am.  I  know  which  are  mine.  Those  that  ascend  from  my 
stomach  and  my  head,  and  also  those  in  my  ears.  I  don't  know  how 
many  there  are.  The  flesh  creates  spirits  by  palpitation  of  the 
nerves  and  the  rheumatics.  All  are  now  in  my  body  and  around  my 
head.  They  speak  to  me  incessantly,  particularly  at  night.  That 
spirits  are  immortal,  I  am  taught  by  my  religion  from  my  childhood. 
No  matter  how  faith  goes,  all  live  after  my  death,  those  that  belong 
to  me  and  those  that  do  not."  After  much  more  of  this  kind  of  talk  he 
added:  "  They  speak  tome  instantly;  they  are  speaking  to  me  now; 
they  are  not  separate  from  me;  they  are  around  me  speaking  to  me 
now;  but  I  can't  be  a  spirit,  for  I  am  flesh  and  blood.  They  can 
go  in  and  out  through  walls  and  places  which  I  cannot."  He  also 
stated  his  opinion  of  what  it  was  to  take  an  oath:  "  When  I  swear," 
he  said,  "  I  appeal  to  the  Almighty.  It  is  a  perjury,  the  breaking  of  a 
lawful  oath,  or  taking  an  unlawful  one;  he  that  does  it  will  go  to  hell 
for  all  eternity."  He  was  then  sworn,  and  gave  a  perfectly  collected 
and  rational  account  of  a  transaction  which  he  declared  that  he  had 
witnessed.  He  was  in  some  doubt  as  to  the  day  of  the  week  on  which 
it  took  place,  and  on  cross-examination  said:  "  These  creatures 
insist  upon  it,  it  was  Tuesday  night,  and  I  think  it  was  Monday;" 
whereupon  he  was  asked :  ''Is  what  you  have  told  us  what  the  spirits 
told  you,  or  what  you  recollected  without  the  spirits  ?  "  And  he  said : 


CAPACITY    TO    TESTIFY.  585 

"  No;  the  spirits  assist  me  in  speaking  of  the  date,  I  thought  it  was 
Monday  and  they  told  me  it  was  Christmas  eve,  Tuesday;  but  I  was 
an  eye  witness,  an  ocular  witness  to  the  fall  to  the  ground."  The 
question  was  reserved  for  the  opinion  of  the  court  whether  this  wit- 
ness was  competent,  and  after  a  very  elaborate  discussion  of  the  sub- 
ject it  was  held  that  he  was.  Chief  Justice  Campbell  said  that  he 
entertained  no  doubt  that  the  rule  laid  down  by  Baron  Parke,  in  an 
unreported  case  which  had  been  referred  to,  was  correct,  that  wher- 
ever a  delusion  of  insane  character  exists  in  any  person  who  is  called 
as  a  witness,  it  is  for  the  judge  to  determine  whether  the  person  so 
called  has  a  sufficient  sense  of  religion  in  his  mind  and  sufficient  un- 
derstanding of  the  nature  of  an  oath,  for  the  jury  to  decide  what 
amount  of  credit  they  will  give  to  his  testimony. 

"  Various  authorities,"  said  the  chief  justice,  "  have  been  referred 
to,  which  lay  down  the  law  that  a  person  non  compos  7nentis  is  not 
an  admissible  witness.  But  in  what  sense  is  the  expression  non 
compos  mentis  employed?  If  a  person  be  so  to  such  an  extent  as  not  to 
understand  the  nature  of  an  oath,  he  is  not  admissible.  But  a  per- 
son subject  to  a  considerable  amount  of  insane  delusion  may  yet  be 
under  the  sanction  of  an  oath  and  capable  of  giving  very  material 
evidence  upon  the  subject-matter  under  consideration."  And  the 
chief  j  ustice  added :  ' '  The  proper  test  must  always  be,  does  the  luna- 
tic understand  what  he  is  saying,  and  does  he  understand  the 
obligation  of  an  oath?  The  lunatic  may  be  examined  himself,  that 
his  state  of  mind  may  be  discovered,  and  witnesses  may  be  adduced 
to  show  in  what  state  of  sanity  or  insanity  he  actually  is;  still,  if  he 
can  stand  the  test  proposed,  the  jury  must  determine  all  the  rest." 
He  also  observed  that  in  a  lunatic  asylum  the  patients  are  often  the 
only  witnesses  of  outrages  upon  themselves  and  others,  and  there 
would  be  immunity  for  offences  committed  in  such  places  if  the  only 
persons  who  can  give  information  are  not  to  be  heard.  Baron  Alder- 
son,  Justice  Coleridge,  Baron  Piatt  and  Justice  Talfourd  agreed  with 
the  chief  justice,  the  latter  observing  that,  "  If  the  proposition  that 
a  person  suffering  under  an  insane  delusion  cannot  be  a  witness  were 
maintained  to  the  fullest  extent,  every  man  subject  to  the  most  inno- 
cent, unreal  fancy  would  be  excluded.  Martin  Luther  believed  that 
he  had  a  personal  conflict  with  the  devil;  Dr.  Johnson  was  persuaded 
that  he  had  heard  his  mother  speak  to  him  after  death.  In  every 
case  the  judge  must  determine  according  to  the  circumstances  and 
extent  of  the  delusion.  Unless  judgment  and  discrimination  be 
applied  to  each  particular  case,  there  may  be  the  most  disastrous 
consequences."  This  case  is  also  found  in  the  2d  of  Denison  and 
Pearce's  Crown  Cases,  254,  where  Lord  Campbell  is  reported  to  have 


586 


INSANITY. 


said  that  the  rule  contended  for  would  have  excluded  the  testimony 
of  Socrates,  for  he  had  one  spirit  always  prompting  him.     The  doc- 
trine of  this  decision  has  not  been  overruled,  that  we  are  aware  of, 
and  it  entirely  disposes  of  the  question  raised  here. 
Judgment  affirmed.' 


Judicial  Determinatio7i  of  Insanity. 

Vann,  J.,  IN  HUGHES  v.  JONES. 
ii6  N.  Y.  67,  72.— 1889. 

On  the  trial  of  this  action  the  court  found,  as  a  fact,  upon  a  con- 
flict of  evidence,  "that  said  Richard  Hughes,  at  the  time  of  the 
execution  and  delivery  of  the  said  deed,  *  *  *  was  mentally 
competent  to  execute  the  same;  that  said  deed  was  not  executed 
by  said  Richard  Hughes  through  force,  fraud  or  undue  influence 
imposed  upon  him  by  said  defendants,  or  any  or  either  of  them,  but 
the  same  was  the  free  and  voluntary  act  and  deed  of  said  Richard 
Hughes. "  It  is  conceded  that  there  was  sufficient  evidence  to  sustain 
this  finding,  unless  the  record  in  the  lunacy  proceeding  was  conclu- 
sive evidence,  and  hence  the  facts  found  by  the  jury  therein 
incapable  of  contradiction  by  the  defendants  in  this  action. 

All  contracts  of  a  lunatic,  habitual  drunkard  or  person  of  unsound 
mind,  made  after  an  inquisition  and  confirmation  thereof,  are  abso- 
lutely void,  until  by  permission  of  the  court  he  is  allowed  to  assume 
control  of  his  property.  L" Amoureauxv.  Crosby,  2  Paige,  422;  Wads- 
worth  v.  Sharpstien,  8  N.  Y.  388;  2  R.  S.  1094,  sec.  10.  In  such  cases 
the  lunacy  record,  as  long  as  it  remains  in  force,  is  conclusive  evi- 
dence of  incapacity.     Id. 

Contracts,  however,  made  by  this  class  of  persons  before  office 
found,  but  within  the  period  overreached  by  the  finding  of  the  jury, 
are  not  utterly  void,  although  they  are  presumed  to  be  so  until 
capacity  to  contract  is  shown  by  satisfactory  evidence.  Id. ;  Van 
Deusen  v.  Sweet,  51  N.  Y.  378;  Banker  v .  Banker,  63  Id.  409.  Under 
such  circumstances  the  proceedings  in  lunacy  are  presumptive,  but 
not  conclusive  evidence  of  a  want  of  capacity.  The  presumption, 
whether  conclusive  or  only  prima  facie,  extends  to  all  the  world  and 
includes  all  persons,  whether  they  have  notice  of  the  inquisition  or 
not.  Hart  \ .  Deamer,  6  Wend.  497;  Osterhout  \.  SJioemaker,  3  Hill, 
513;  I  Greenl.  Ev.  sec.  556. 

These  principles  are  now  well  settled  in  this  state,  and  no  ques- 
tion could  have  arisen  as  to  the  right  of  the  defendants  to  show  that 

•  See,  also,    Coleman  v.  Commonwealth,  25  Gratt.  865. 


JUDICIAL   DETERMINATION   OF    INSANITY.  587 

the  grantor,  at  the  time  the  conveyance  in  question  was  executed, 
was  of  sound  mind,  but  for  the  fact  that  the  grantee  was  the  peti- 
tioner in  the  hinacy  proceedings.  It  is  claimed  that  he  thereby 
became  a  technical  party  to  the  record,  as  that  expression  is  com- 
monly understood  in  law,  and,  hence,  that  he  is  so  completely  bound 
by  the  finding  of  the  jury  as  to  be  precluded  from  attempting  to 
show  the  actual  truth.  This  point  does  not  appear  to  have  been 
passed  upon  by  the  courts,  although  there  are  dicta  of  learned 
judges  bearing  somewhat  upon  it. 

A  party  is  ordinarily  one  who  has  or  claims  an  interest  in  the  sub- 
ject of  an  action  or  proceeding  instituted  to  afford  some  relief  to  the 
one  who  sets  the  law  in  motion  against  another  person  or  persons. 
Interest,  or  the  claim  of  interest,  is  the  statutory  test  as  to  the  right 
to  be  a  party  to  legal  proceedings  almost  without  exception. 
Unless  a  party  has  some  personal  interest  in  the  result  he  can  have 
no  standing  in  court.  But  any  one,  even  a  stranger,  can  petition  for 
a  commission  to  inquire  as  to  the  sanity  of  any  other  person  within 
the  jurisdiction  of  the  court.  While  this  is  now  provided  by  statute 
it  was  also  the  rule  at  common  law,  although  a  strong  case  was 
required  if  the  application  was  not  made  by  some  person  standing  in  a 
near  relation  to  the  supposed  lunatic.  (Code  Civ.  Pro.  sec.  2323; 
In  re  Smith,  i  Russ.  348;  In  re  Persse,  i  Moll.  439;  Shelford  on 
Lunatics,  etc.,  94;  2  Crary's  N.  Y.  Pr.  5;  Ordronaux,  Judicial 
Aspects  of  Insanity,  218. 

******** 

The  primary  object  of  the  proceeding  is  not  to  benefit  any  particu- 
lar individual,  but  to  see  whether  the  fact  of  mental  incapacity 
exists,  so  that  the  public,  through  the  courts,  can  take  control.  The 
petitioner  can  derive  no  direct  benefit  from  it.  The  advantage  to 
him,  if  any,  is  only  such  as  would  result  if  any  other  person  had  first 
acted  in  the  matter. 

Attentive  study  of  the  history,  nature  and  object  of  lunacy  pro- 
ceedings leads  to  the  conclusion  that  the  petitioner  therein  is  not  a 
party  to  the  record  so  as  to  be  personally  estopped  by  the  finding  of 
the  jury,  except  as  all  the  world  is  estopped. 

We  also  agree  with  the  learned  General  Term  in  its  conclusion 
that  the  title  to  land  was  not  involved  in  the  proceeding  under  con- 
sideration, and  that  a  commission  to  inquire  as  to  the  mental  status  of 
an  alleged  lunatic  has  no  power  to  settle  any  such  question.  Such 
a  tribunal  is  not  adapted  to  so  important  an  inquiry.  It  is  not  con- 
stituted for  such  a  purpose,  but  simply  to  inform  the  conscience  of 
the  court  as  to  a  particular  fact,  for  a  special  purpose.  It  would 
have  no  pleadings  to  guide  it.     No  distinct  issue  upon  the  subject 


588  INSANITY. 

could  be  presented.  It  would  be  only  incidental  to  the  main  ques- 
tion, which  relates  to  existing  incapacity.  When  that  is  found,  the 
care  of  the  person  and  estate  belongs  to  the  court.  Unless  that  is 
found  the  court  has  no  further  jurisdiction,  whatever  else  may  be 
found.  No  other  inquiry  can  become  material  except  from  its  rela- 
tion to  that  question.  The  command  of  the  commission  is  to  inquire 
whether  the  person  is  a  lunatic  and  if  so,  from  what  time,  in  what 
manner  and  how.  The  period  of  the  incapacity  is  of  no  importance 
unless  it  includes  the  present  time. 

The  secondary  character  of  the  inquiry  as  to  duration  is  evident 
from  the  fact  that  if  the  jury  find  the  alleged  lunatic  to  be  of  sound 
mind,  they  have  no  power  to  pass  upon  any  other  question,  even  if 
they  are  of  the  opinion  that  he  has  been  insane.  Moreover,  the 
peiitioner  would  not  be  allowed  to  control  the  proceeding  by  a  settle- 
ment or  discontinuance  or  by  submitting  to  a  nonsuit,  except  by 
permission  of  the  court,  which  could  allow  any  one  to  continue  if  he 
abandoned  it.     Shelford,  22. 

The  difficulty  of  correcting  errors  by  appeal  or  review  is  obvious. 
In  fine,  such  a  method  of  determining  the  title  to  real  estate  is 
opposed  to  the  theory  and  policy  of  the  law,  which  surrounds  landed 
property  with  so  many  safeguards. 

We  think  that  the  validity  of  the  deed  in  question  was  not  at  issue, 
and  that  it  could  not  be  tried  in  the  lunacy  proceeding. 


WILLWERTH  v.  LEONARD. 
156  Mass.  277. — 1892. 

Two  actions  on  the  Pub.  Sts.  c.  175,  to  recover  possession  of  cer- 
tain premises  in  Boston.  The  plaintiff  claimed  title  as  lessee  of 
Joseph  Willwerth.  The  case  was  submitted  to  the  Superior  Court^ 
and,  after  judgment  for  the  plaintiff  for  possession  and  costs,  to  this 
court,  on  appeal,  on  an  agreed  statement  of  facts,  the  material  por- 
tions of  which  appear  in  the  opinion.  If  the  plaintiff  was  not  enti- 
tled to  judgment,  but  if  at  a  trial  of  the  causes  the  plaintiff  would  be 
entitled  to  show  certain  facts  bearing  upon  the  mental  condition  of 
Joseph  Willwerth,  then  a  new  trial  was  to  be  ordered. 

Morton,  J.  It  appears  that  Joseph  Willwerth,  then  of  Boston, 
was  adjudged  insane,  after  due  notice  and  hearing  by  the  Probate 
Court  of  Suffolk  county,  December  12,  1881,  and  his  wife  was 
appointed  his  guardian.  On  May  31,  1888,  he  petitioned  for  the 
removal  of  his  guardian  for  unsuitableness;  and  on  June  15,  1888, 
further  petitioned  that  she  should  be  discharged,  on  the  ground  t^at 


JUDICIAL   DETERMINATION    OF   INSANITY.  589 

the  guardianship  was  no  longer  necessary.  Both  petitions  were  dis- 
missed by  the  Probate  Court,  and  he  appealed  to  the  Supreme  Judi- 
cial Court,  in  which,  on  May  27,  1890,  decrees  were  entered  afifirming 
the  decree  of  the  Probate  Court  dismissing  the  petition  for 
discharge  of  the  guardianship,  but  reversing  that  on  the  petition  for 
removal,  and  removing  her,  and  remitting  both  cases  to  the  Probate 
Court  for  further  proceedings.  On  May  28,  1890,  a  petition  was 
presented  to  the  Probate  Court  at  Cambridge,  alleging  that  Wili- 
werth  was  an  inhabitant  or  resident  of  Cambridge,  and  asking  for 
the  appointment  of  one  Avis  Willwerth  as  guardian.  This  petition 
was  assented  to  by  Willwerth,  but  the  Probate  Court  dismissed  it. 
The  lease  in  question  was  made  on  July  7,  1890. 

The  defendants  have  introduced  no  evidence  except  the  copies 
relating  to  their  various  proceedings,  and  they  contend  that  it 
appears  from  them  that  the  decree  by  which  Willwerth  was  adjudged 
insane  is  in  force,  and  has  never  been  revoked  or  modified,  except  so 
'far  as  the  removal  of  the  guardian  may  have  modified  it,  and  that 
the  lease  was  therefore  ineffectual  to  pass  to  the  plaintiff  an  interest 
in  the  premises  described  in  it,  because  the  decree  conclusively 
shows  that  Willwerth  was  insane  when  it  was  made.  We  think  this 
position  cannot  be  sustained. 

The  removal  of  the  guardian  terminated  the  guardianship.  Lorin^ 
v.  Allitte,  9  Cush.  68,  70;  Allis  v.  Morton,  4  Gray,  63;  Chapin  v. 
Livermore,  13  Gray,  561,  562;  Harding  v.  JVehi,  128  Mass.  587,  591. 
Sending  the  case  back  to  the  Probate  Court  for  further  proceedings 
did  not  qualify  the  terminating  effect  of  the  removal.  It  was  a  dis- 
position of  the  case  made  necessary  by  the  fact  that  it  was  in  the 
hands  of  an  appellate  court.  A  new  notice  and  a  new  hearing  were 
necessary  in  the  Probate  Court  to  the  appointment  of  another  guar- 
dian. The  court  could  not  proceed  on  the  strength  of  the  former 
hearing  and  decree.  Harding  v.  Weld,  and  Allis  v.  Morton,  ubi 
supra.  The  title  to  the  property  remained  all  the  time  in  the  ward, 
and  the  guardian  could  make  no  contract  relating  to  the  property 
that  would  bind  the  ward  when  the  guardianship  ceased.  Hicks  v. 
Chapman,  10  Allen,  463.  So  long  as  the  guardianship  continued,  the 
decree  of  the  Probate  Court  may  well  have 'been  regarded  as  conclu- 
sive on  the  question  of  the  ward's  sanity,  on  the  ground  that  the 
decree  fixed  the  ward's  status  as  to  all  the  world,  and  also  because 
it  might  greatly  have  embarrassed  the  execution  of  his  trust  if  the 
guardian  could  have  been  compelled  to  try  the  question  of  his  ward's 
sanity  in  every  action  for  or  against  him.  White  v.  Palmer,  4  Mass. 
147;  Leonard  v.  Leonard,  14  Pick.  280;  Leggate  v.  Clark,  iii  Mass. 
308,  310.     But  when  the  guardianship  has  terminated,  and  a  contro- 


590  INSANITY. 

versy  has  arisen  between  third  parties,  one  of  wlioni  claims  under  a 
contract  made  with  the  ward  after  the  termination  of  the  guardian- 
ship, the  reason  ceases  for  holding  the  decree  conclusive.  Indeed, 
to  give  it  the  effect  contended  for  by  the  defendants  would  be  to 
place  Wilhverth,  because  of  the  former  decree  of  the  Probate  Court, 
in  the  anomalous  position  of  being  unable  to  make  contracts  con- 
cerning his  own  property,  although  he  is  not  under  guardianship, 
and  there  is  no  petition  pending  to  place  him  there,  and  the  court 
could  not  use  the  former  hearing  and  decree  as  the  basis  for  the 
appointment  of  another  guardian.  If  the  decree,  like  a  decree  of 
divorce,  fixed  permanently  the  status  of  the  party  affected  by  it, 
then  the  case  might  stand  differently;  but  it  did  not  do  that.  Its 
disabling  effect  continued  only  so  long  as  the  guardianship  continued. 
It  is  true  that  his  petition  for  a  discharge  of  the  guardianship  was 
dismissed.  But  the  removal  terminated  the  guardianship  as  effectu- 
ally as  a  discharge  would  have  done;  possibly  that  may  have  been  a 
reason  for  dismissing  it.  A  guardianship  may  be  terminated  as  well 
by  death,  removal,  or  resignation  as  by  a  discharge.  Loring  v. 
Alline,  9  Cush.  68.  No  method  is  provided  in  which,  after  a  guar- 
dianship has  for  any  cause  ceased,  the  decree  on  which  it  was  based 
may  be  annulled.  We  think,  therefore,  that  the  decree  of  the  Pro- 
bate Court  is  not  conclusive  on  the  question  of  Willwerth's  insanity 
at  the  time  of  making  the  lease.  Whether  it  is  open  to  the  defend- 
ants to  raise  the  question  of  his  insanity  at  that  time,  and  whether, 
if  it  is,  the  decree  would  be  admissible  as  evidence  on  that  point,  we 
need  not  now  consider.  The  defendant's  case  does  not  rest  on  the 
ground  that  it  is  admissible  as  evidence  tending  to  prove  insanity, 
but  on  the  ground  that  it  conclusively  establishes  insanity.  For 
aught  that  appears,  the  lease  was  valid,  although,  if  another  guardian 
were  appointed,  and  he  were  able  to  show  that  Wiliwerth  was  insane 
when  it  was  made,  it  could  be  avoided. 

We  have  preferred  to  consider  the  case  on  the  main  question 
involved,  and  the  view  which  we  have  taken  of  that  renders  it  un- 
necessary to  consider  other  questions  that  have  been  raised. 

Judgment  afifirmed. 


Woodward,  J.,  in  TOZER  v.  SATURLEE. 

3  Grant's  Cases  (Pa.),   162,   163. —  1855. 

Where  the  contract  of  a  lunatic  or  drunkard  is  in  question,  and 
the  fact  of  lunacy  or  drunkenness  is  established  by  other  means  than 
a  legal  inquisition,  it  is  always  competent  for  the  party  alleging  the 


JUDICIAL    DETERMINATION   OF   INSANITY.  591 

contract  to  prove  a  lucid  interval  —  and  even  an  inquisition  is  only 
persuasive  evidence  of  incompetency  as  to  contracts  made  before  the 
inquest,  but  during  the  time  the  incompetency  is  found  to  have 
existed.  We  have  several  cases  in  our  books  in  respect  to  such  con- 
tracts, where  evidence  was  admitted  to  counter-vail  the  effect  of  the 
inquisition.  As  to  contracts  made  after  the  inquisition,  our  statute 
contemplates  a  complete  transfer  of  the  property  to  the  custody  of 
the  law,  and  the  committee  is  substituted  for  the  lunatic  or  drunkard, 
and  a  lucid  interval  can  avail  nothing,  for  he  has  nothing  in  respect  to 
which  to  contract.  This  is  always  the  case  where  the  proceeding  is 
perfected.  Where  it  is  suspended  or  abandoned  in  mid-course,  as 
seems  to  have  been  the  case  here,  it  may  be  doubted  whether  any 
stronger  presumption  is  furnished  by  an  inquisition  as  to  contracts 
made  after  it  was  found,  than  as  to  such  as  were  made  previously, 
but  within  the  ascertained  period  of  incompetency.  If  no  stronger, 
then  it  is  not  conclusive,  and  may  be  rebutted  by  such  evidence  as 
was  offered  here. 

This,  however,  we  repeat,  is  not  a  case  of  contract,  but  of  mere 
declarations,  confessedly  competent  evidence  in  themselves.  If  the 
established  fact  of  lunacy  or  drunkenness  does  not  as  a  general 
principle  exclude  such  subsidiary  proof  when  offered  in  respect  to 
contracts,  much  less  should  it  be  permitted  to  deprive  these  declara- 
tions of  the  support  expected  from  the  evidence  contained  in  the 
bill  of  exceptions. 

MANLEY'S  EXECUTOR  v.   STAPLES. 

62  Vt.    153. —  1890. 

This  was  an  appeal  from  a  decree  of  the  Probate  Court,  admitting 
to  probate  the  will  of  Madison  S.  Manley.  Trial  by  jury  at  the 
March  Term,  1889,  Ross,  J.,  presiding.  Exceptions  by  the  con- 
testant. 

It  appeared  that  the  contestant  had  applied  to  the  Probate  Court 
for  the  appointment  of  a  guardian  for  the  testator,  on  the  ground 
that  he  was  an  insane  person;  and  that  this  application  had  been, 
after  a  full  hearing,  denied,  December  10,  1887.  Shortly  after  this 
the  will  was  made,  and  the  evidence  of  the  contestant  showed  that 
there  had  been  no  change  in  the  mental  condition  of  the  testator 
between  that  date  and  the  making  of  the  will.  The  court  held  pro 
forma  that  the  contestant  was  estopped  by  that  decree  from  show- 
ing that  the  testator  had  not  then  sufficient  testamentary  capacity, 
withdrew  the  case  from  the  jury,  and  certified  the  exceptions  to  the 
Supreme  Court. 


592  INSANITY. 

Row  ELL,    J.  *  *  *  *  *  *  * 

The  fact  that  one  is  under  guardianship  as  an  insane  person  is  not 
conclusive  against  his  capacity  to  make  a  will  while  the  guardianship 
continues.  Rol)inson's  Exr.  v.  Robinson^  39  Vt.  267.  But  it  does  not 
follow  from  this  that  the  dismissal  on  the  merits  of  an  application  for 
the  appointment  of  a  guardian  of  one  as  an  insane  person  is  conclu- 
sive in  favor  of  his  capacity  to  make  a  will.  This  is  manifest  when 
we  consider  the  reasons  for  the  decision  in  the  case  referred  to. 

The  ground  of  appointing  a  guardian  of  a  person  as  insane  is,  that 
by  reason  of  mental  weakness  or  distraction,  or  both,  he  is  inca- 
pable of  taking  care  of  himself,  and  the  object  of  it  is  to  secure 
proper  care  of  his  person  and  property.  Robinson  s  Exr.  v.  Robin- 
son., above  cited.  It  follows,  therefore,  that  to  refuse  the  appoint- 
ment of  a  guardian  of  a  person  as  insane,  is  an  adjudication  that  he 
is  not  in  such  mental  condition  aforesaid  as  to  be  incapable  of  taking 
care  of  himself.  It  is  not  necessarily  an  adjudication  that  he  is  not 
insane  at  all;  but  only  that  he  is  not  insane  in  a  respect,  nor  to  an 
extent,  that  renders  him  incapable  of  taking  care  of  himself. 

Insanity  differs  in  kind  and  character  as  well  as  in  extent  and 
degree. 

A  man  may  be  insane  on  some  subjects  and  not  on  others.  He 
may  be  insane  on  one  subject  and  sane  on  all  others.  His  insanity- 
may  be  of  such  a  character  and  run  along  such  a  line  as  in  no  wise 
to  affect  his  capacity  to  take  care  of  himself  and  his  property.  The 
insanity  last  mentioned  would  not  warrant  the  appointment  of  a 
guardian  over  him,  as  it  would  not  constitute  the  statutory  cause 
for  the  appointment,  and  yet  it  might  consist  of  such  a  delusion  in 
respect  of  a  disinherited  child  as  to  defeat  a  will  that  was  the  direct 
offspring  of  the  partial  insanity.  It  seems  clear,  therefore,  that  the 
question  here  involved  was  not  necessarily  involved  in  the  proceed- 
ings before  the  Probate  Court,  and  that  its  decree  is  not  conclusive 
in  the  respect  claimed. 

Judgment  reversed  and  cause  remanded.' 

'  "  The  jury  found  that  the  testator  was  not  of  sound,  disposing  mind  and 
competent  to  make  his  will  at  the  time  of  making  the  will  in  question.  The 
mere  fact  that  a  testator  is,  at  the  time  of  making  his  will,  under  guardianship 
as  to  his  person  and  property,  may  not  of  itself  incapacitate  him  to  make  a  valid 
will,  provided  he  is  capable,  at  the  time,  of  comprehending  the  conditions  of  his 
property,  his  relationship  to  the  natural  objects  of  his  bounty,  and  the  disposition 
actually  made  of  his  property  by  such  will.  Under  the  evidence,  we  are  unwilling 
to  say  that  the  trial  court  was  not  justified  in  holding,  in  effect,  that  at  the  time 
of  making  the  will  in  question  the  testator  had  such  comprehension,  and  hence 
mental  capacity;  so  that  the  seventh  finding  of  the  jury,  standing  alone,  might  be 
fairly  iregarded  as  unsupported  by  the  evidence."— ^iV/t*/  Slinger,  72  Wis.  22,  26. 


JUDICIAL    DETERMINATION   OF   INSANITY.  593 

Okey,  J.,  IN  WHEELER  v.  THE  STATE. 

34  Ohio  St.  394,   396.— 1878. 

Inquisitions  of  this  sort  have  been  admitted  in  evidence  in 
numerous  cases,  some  of  which  were  between  private  parties,  and 
others  concerned  the  pubHc.  i  Greenl.  Ev.,  sec.  356;  2  lb., 
sec.  371;  Freeman  on  Judgments,  606;  Banker  v.  Banker,  63  N.  Y, 
409;  McGinnis  v.  Com.,  74  Pa.  St.  245;  Lattcaster  Co.  Nat.  Bank  v. 
Moore,  78  Pa.  St.  407.  In  2  Phillipps'  Ev.  *266,  it  is  said:  "An 
inquisition  of  lunacy  is  evidence  on  the  trial  of  an  indictment  to  show 
that  the  prisoner  was  insane  when  he  committed  the  offence."  To 
the  same  effect  is  Sharswood's  Starkie's  Ev.  *4o7 ;  Shelford  on 
Lunatics,  74. 

Inquests  of  this  character  are  analogous  to  proceedings  in  rem, 
affecting  the  general  and  public  interest,  and  no  one  can  strictly  be 
regarded  as  a  stranger  to  them.  And  such  condition  of  things  as 
the  insanity  of  a  party  being  shown,  there  is  a  presumption  of  more 
or  less  force,  according  to  circumstances,  that  the  same  condition 
continued.  Nor  does  the  time  which  may  have  elapsed  since  the 
inquest  was  held  affect  the  question  of  its  admissibility  [Sergeson  v. 
Sea/y,  2  Atkyns,  412),  though,  of  course,  it  may  have  great  force  on 
the  question  of  the  weight  of  the  evidence. 

Ordinarily,  such  inquisitions  are  not  conclusive,  but  only  prima 
facie  evidence  of  incapacity,  as  will  be  seen  from  the  authorities 
cited;  but,  on  a  question  like  that  in  issue  here,  it  is  manifest  that 
they  cannot  be  regarded  as  even  prima  facie  evidence.  A  person 
who  is  a  fit  subject  for  confinement  in  an  insane  asylum  does  not 
necessarily  have  immunity  from  punishment  for  crime;  and  the 
length  of  time  between  confinement  in  the  asylum  and  the  Commis- 
sion of  the  act  charged,  the  nature  of  the  crime,  and  other  facts, 
may  render  such  inquisition  of  little  weight  as  evidence;  but  its 
weight  is  for  the  jury  in  each  case. 

The  only  criminal  case  cited  by  Phillips,  in  support  of  the  passage 
quoted  from  his  work,  is  Rex  v.  Bowler.  That  was  a  case  tried 
before  Gibbs,  C.  J.,  and  Le  Blanc,  J.,  at  Old  Bailey,  in  June,  1812. 
It  is  fully  stated  in  3  Starkie's  Ev.,  pt.  4,  *i704,  and  Shelford  on 
Lunatics,  590.  An  inquest  of  lunacy  was  offered  and  admitted;  but 
the  defendant  was  convicted  and  executed,  and  it  is  manifest,  from 
the  reports  of  the  case,  that  the  record  was  admitted  as  evidence 
merely  tending  to  prove  insanity. 
[Domestic  Relations  —  38.] 


PART   V. 

DRUNKENNESS 


Voidability  of  Contracts. 
BUSH  V.   BREINIG. 

113  Pa.   St.   310. —  1886. 

This  was  an  action  of  assumpsit,  brought  by  James  H.  Breinig 
against  William  H.  Bush,  to  recover  the  portion  of  the  purchase 
money  paid  by  him  in  pursuance  of  a  contract  executed  when,  he 
alleges,  he  was  in  such  a  state  of  drunkenness  as  not  to  know  what 
he  was  doing,  and  had  lost  the  use  of  his  reason  and  understanding. 
Plea,  non  assumpsit,  payment  with  leave. 

William  H.  Bush,  the  owner  of  a  hotel  property  in  Quakertown, 
offered  the  same  for  sale  at  a  public  sale,  on  October  24th,  1883. 
Breinig  attended  the  sale,  and  became  the  purchaser  at  $1,340,  he 
being  the  highest  bidder.  About  an  hour  after  the  property  was 
knocked  down  to  him  he  executed  a  written  contract  in  conformity 
with  the  conditions  of  the  sale,  paid  $495  in  cash,  and  gave  his  note 
for  $845.  Breinig  alleged  that  at  the  time  he  signed  the  contract, 
gave  the  note  and  paid  the  cash,  he  was  in  such  a  state  of  drunken- 
ness as  to  suspend  his  reason  and  understanding. 

Mr.  Justice  Trunkey.  When  the  plaintiff's  bid  was  accepted 
the  bargain  was  struck,  and  there  was  an  oral  agreement  for  the  sale 
and  purchase  of  the  land  on  the  terms  stated  in  the  conditions  of 
sale.  That  agreement  was  not  void,  but  voidable.  Neither  party 
could  have  compelled  specific  performance.  Either  would  have  a 
right  of  action  for  damages  resulting  from  non-performance  by  the 
other;  but  the  vendee  could  not  tender  a  deed  and  recover  the  pur- 
chase money,  for  that  would  be  enforcing  specific  performance;  he 
could  only  recover  the  actual  loss. 

Upon  the  signing  of  the  conditions, //-//««/<?(:?>,  there  was  a  con- 
tract that  could  be  specifically  enforced.  Money  paid  on  either  the 
oral  or  written  contract  could  not  be  recovered  unless  there  was 
cause  for  rescission.  Here,  it  is  conceded  that  there  was  an  oral 
contract;  but  the  plaintiff  denies  that  he  made  a  written  contract 
and  paid  money  and  note  thereon,  because  at  the  time  his  signatures 

[=941 


VOIDABILITY    OF   CONTRACTS.  595 

and  money  were  given  he  was  incapable  of  making  a  contract  by 
reason  of  drunkenness.  If  he  was  without  reason  and  understand- 
ing the  payment  of  the  money  ought  not  to  be  treated  as  voluntary, 
nor  his  signature  as  creating  a  new  obligation.  The  conditions  of 
sale  may  have  been  read  in  his  hearing  at  the  auction,  and  he  may 
have  understood  them  when  he  bid;  but  he  paid  no  money  until  the 
time  of  signing  the  alleged  contract,  and  if  he  was  then  bereft  of 
reason  he  may  avoid  the  apparent  obligation  made  while  in  that 
condition. 

It  is  not  a  question  whether  what  he  did  was  the  carrying  out  of  a 
fair  and  reasonable  oral  contract,  or  whether  the  property  was  worth 
the  sum  bid;  it  is  a  question  of  his  capacity  to  make  a  contract  at 
the  time  he  signed  the  conditions  and  paid  the  money.  The  subject 
of  the  contract  was  not  necessary  for  himself  or  family;  he  took 
nothing  into  his  possession  and,  therefore,  had  nothing  to  restore  in 
the  act  of  rescission;  and  he  brought  suit  so  promptly  that  at  the 
trial  the  question  of  delay  in  rescinding  was  not  raised. 

The  rule  formerly  was,  that  intoxication  was  no  excuse,  and 
created  no  privilege  or  plea  in  avoidance  of  a  contract;  but  it  is 
now  settled  according  to  the  dictate  of  good  sense  and  common  jus- 
tice, that  a  contract  made  by  a  person  so  destitute  of  reason  as  not 
to  know  the  consequences  of  his  contract,  though  his  incompetency 
be  produced  by  intoxication,  is  voidable,  and  may  be  avoided  by 
himself,  though  the  intoxication  was  voluntary,  and  not  procured  by 
the  circumvention  of  the  other  party.  Kent's  Com.  vol.  2,  p.  451. 
A  drunkard,  when  in  a  complete  state  of  intoxication,  so  as  not  to 
know  what  he  is  doing,  has  no  capacity  to  contract  in  general;  but 
his  contract  is  voidable  only  and  not  void,  and  may  therefore  be 
ratified  by  him  when  he  becomes  sober.     Benjamin  on  Sales,  sec.  ^^. 

The  learned  judge  of  the  Common  Pleas  instructed  the  jury  that 
the  plaintiff  could  recover  only  on  the  ground  that  the  contract  did 
not  bind  him  because  he  was  intoxicated  to  a  degree  that  he  did  not 
know  what  he  was  doing  at  the  time  he  affixed  his  seal  and  gave  the 
money;  that  if  he  was  in  such  a  state  of  drunkenness  as  not  to  know 
what  he  was  doing,  he  cannot  be  compelled  to  perform  the  contract; 
and  that  if  at  the  time  of  signing  the  contract,  he  was  able  to  com- 
prehend the  nature  and  effect  thereof,  the  alleged  intoxication  is  no 
defence.  All  that  accords  with  principles  so  well  settled  as  to  be 
found  in  approved  text-books.  They  apply  to  a  case  like  this;  not 
where  an  intoxicated  man  gave  his  negotiable  paper,  which  had 
passed  to  an  innocent  holder  for  value,  as  was  the  case  in  S^ate  Bank 
V.  McCo}\  69  Pa.  204. 

In  answer  to  the  defendant's  first  point  the  court  charged  that 


596  DRrNKKNNESS. 

the  drunkenness  of  the  plainliff,  to  relieve  him  from  the  contract 
must  have  been  such  that  he  did  not  know  what  he  was  doing;  it 
must  have  been  such  as  to  suspend  the  use  of  reason  and  under- 
standing. There  is  no  error  in  that.  True,  the  word  "  utterl)-  "  is 
omitted,  which  is  used  in  the  defining  of  the  state  of  drunkenness, 
in  Story's  Etj.  Jur.,  sec.  231;  but  the  sense  is  not  materially  differ- 
ent; and  that  word  is  omitted  by  many  in  the  attempt  to  define  the 
degree  of  intoxication  and  absence  of  reason.  The  point  was  well 
answered;  its  simple  affirmance  might  have  misled  the  jury;  "  unfair 
advantage  "  wa:s  not  a  question  submitted. 

The  fifth  assignment  is  not  sustained.  Although  the  question 
ought  not  to  have  been  allowed  when  put,  for  the  reason  stated  in 
the  objection,  very  soon  there  was  testimony  that  the  witness  was 
intoxicated  at  the  time  referred  to  in  the  question.  No  objection 
was  made  to  its  form,  and  its  admission  out  of  order  was  harmless. 

None  of  the  remaining  assignments  require  special  remark. 

Judgment  affirmed.' 


Torts  by  Drunken  Persons. 

REED  V.   HARPER. 

25   Ia.   87.— 1868. 

Action  for  slander.  Jury  trial.  Verdict  and  judgment  for 
plaintiff  for  seven  hundred  dollars.     The  defendant  appeals. 

Cole,  J.  The  defendant  is  charged  to  have  spoken  of  the  plain- 
tiff, "  he  is  a  damned  thief,  he  stole  from  me;"  and  also,  "  he  swore 
to  a  lie  at  Marion,  and  I  can  prove  it."  The  petition  avers  that 
before  the  speaking  of  the  words  last  specified,  there  had  been  a  suit 
pending  in  the  District  Court  of  Linn  county,  at  Marion,  between 
these  parties,  wherein  the  plaintiff  was  sworn  and  testified  as  a  wit- 
ness. The  evidence  showed  the  speaking  of  the  words  and  the 
pendency  of  the  suit.  The  defendant  testified,  that  at  the  time  he 
was  charged  to  have  spoken  the  words,  "  he  was  for  the  first  time  in 
a  fix,  that  he  did  not  know  what  he  was  about,  and  that  he  had  no 
recollection  of  what  was  said  or  took  place  there,  or  how  he  got 
home." 

The  only  point  insisted  on  in  argument  is,  that  the  court  should 
have  instructed  the  jury  that  if  they  believed  from  the  evidence, 
that  the   defendant   was   so   intoxicated   at   the   time   he  spoke  the 

'  See,  also,  Barrett  v.  Buxton,  2  Aikens  (Vt.)  167. 


CRIMES    BY    DRUNKEN    PERSONS.  597 

words,  that  he  did  not  know  what  he  was  about,  the  plaintiff  could 
not  recover.  The  court  did  not  so  instruct,  but  did  instruct  the 
jury,  that  it  is  no  sufficient  cause  to  defeat  the  action  if  it  appears 
that  the  defendant  was  drunk  when  he  uttered  the  words,  if  he  did 
utter  them;  but  in  considering  the  amount  of  the  verdict,  it  was 
their  duty  to  consider  all  the  facts  and  circumstances  attending  and 
surrounding  the  speaking  of  the  words.  In  this  the  court  did  not  err. 
Drunkenness  will  not  excuse  a  slander.     McKee  v.  IitgaJls,  4  Scam.  30. 

■As  to  the  other  errors  assigned,  but  not  insisted  on  in  argument, 
we  may  say,  that  we  have  examined  them  seriatim,  and  find  no  error 
to  defendant's  prejudice. 

Affirmed. 


Crimes  by  Drunken  Persons, 
O'GRADY  V.  STATE. 

Tfi  Neb.   320. —  1893. 

Maxwell,  Ch.  J.  The  plaintiff  in  error  was  convicted  of 
attempting  to  pass  a  forged  check  and  was  sentenced  to  imprison- 
ment in  the  penitentiary  for  two  years.  All  the  testimony  in  the 
case  upon  that  point  tends  to  show  that  the  plaintiff  in  error  was 
intoxicated  at  the  time,  and  the  question  presented  is  to  what 
extent,  if  at  all,  excessive  drunkenness,  not  entered  into  for  the  pur- 
pose of  committing  crime,  may  be  considered  by  the  jury  in  deter- 
mining the  intention  of  the  accused.  The  court  instructed  the  jury: 
"  The  jury  are  instructed  that  voluntary  intoxication  or  drunken- 
ness is  no  excuse  for  a  crime  committed  under  its  influence,  nor  is 
any  state  of  mind  resulting  from  drunkenness,  short  of  actual  insan- 
ity or  loss  of  reason,  any  excuse  for  a  criminal  act.  Where  without 
intoxication  the  law  would  impute  a  criminal  intent,  proof  of  drunken- 
ness will  not  avail  to  disprove  such  intent  where  the  drunkenness  is 
voluntary."  It  will  be  observed  that  the  instruction  contains  two 
propositions,  viz.,  that  drunkenness  is  no  excuse  for  crime  unless  it 
produces  actual  insanity  or  loss  of  reason,  and,  second,  that  where 
the  intoxication  is  voluntary,  proof  of  intoxication  cannot  be  con- 
sidered to  disprove  intent.  The  rule  as  stated  in  the  second  part  of 
the  instruction,  being  without  qualification,  is  too  broad.  While  it 
is  true  that  intoxication  is  not  a  justification  or  excuse  for  crime  it 
is  also  true  that  at  the  present  time  evidence  of  intoxication  may  be 
admitted  to  determine  whether  or  not  a  crime  has  been  committed 
or  where  it  consists  of  several  degrees  depending  on  the  intent,  the 
crrade  of  the  offence. 


598  DRUNKENNESS. 

Cline  V.  Statc^  43  Ohio  St.  334,  335,  which  in  our  view  states  the 
hiw  correct!}-,  is  as  follows:  "  Where  a  person  having  the  desire  to 
lie  to  another  an  unlawful  injury,  drinks  intoxicating  liquors  to  nerve 
himself  to  the  commission  of  the  crime,  intoxication  is  held,  and 
properly,  to  aggravate  the  offence;  but  at  present  the  rule  that 
intoxication  aggravates  crime  is  confined  to  cases  of  that  class. 
The  rule  is  well  settled  that  intoxication  is  not  a  justification  or  an 
excuse  for  crime.  To  hold  otherwise  would  be  dangerous  to  and 
subversive  of  public  welfare.  But  in  many  cases  evidence  of  intoxi- 
cation is  admissible  with  a  view  to  the  question  whether  a  crime  has 
been  committed,  or  where  a  crime  consisting  of  degrees  has  been 
committed,  such  evidence  may  be  important  in  determining  a  degree. 
Thus,  an  intoxicated  person  may  have  a  counterfeit  bank  bill  in  his 
possession  for  a  lawful  purpose,  and,  intending  to  pay  a  genuine  bill 
to  another  person,  may,  by  reason  of  such  intoxication,  hand  him  the 
counterfeit  bill;  as  intent  in  such  case  is  of  the  essence  of  the 
offence,  it  is  possible  that  in  proving  intoxication  you  go  far  to 
jirove  that  no  crime  was  committed.  Pigman  v.  State,  14  Ohio, 
555.  So  where  the  offence  charged  embraces  deliberation,  premedi- 
tation, some  specific  intent,  or  the  like,  evidence  of  intoxication  may 
be  important,  and  it  has  frequently  been  admitted.  Id. ;  NicJwls  v. 
State,  8  Ohio  St.  435;  Davis  v.  State,  25  Id.  369;  Lytle  v.  State,  31  Id. 
196.  The  leading  case  of  Pigman  v.  State  has  been  repeatedly 
cited  with  approval.  People  v.  Robinson,  2  Park.  235;  People  v.  Har- 
ris, 29  Cal.  678;  Roberts  v.  People,  19  Mich.  401;  State  v.  Welch,  21 
Minn.  22;  Jloptv.  People,  104  U.  S.  631;  State  v.  Johnson,  40  Conn. 
136  and  no  doubt  the  law  upon  the  subject  is  correctly  stated  in 
that  case,  and  that  the  rule  as  there  expressed  is  humane  and  just, 
but  there  is  always  danger  that  undue  weight  will  be  attached  to  the 
fact  of  drunkenness  where  it  is  shown  in  a  criminal  case,  and  courts 
and  juries  should  see  that  it  is  only  used  for  the  purpose  above 
stated,  and  not  as  a  cloak  or  justification  for  crime.  See,  also, 
U.  S.  v.  Dreiv,  5  Mason,  28;  s.  c,  i  Lead.  Crim.  Cas.  (2d  ed.), 
131,  note;  Reg.  v.  Davis,  14  Cox,  C.  C,  563;  s.  c,  28  Moak,  Eng. 
Rep.  657;  note,  Lawson  on  Insanity,  533-768,  where  all  the  cases 
are  collected  relating  to  the  admissibility  and  effect  in  criminal 
cases  of  proof  of  intoxication." 

Drunkenness  is  not  favored  as  a  defence,  and  in  Johnson  v.  Phifer, 
6  Neb.  402,  this  court  held  that  it  could  not  relieve  a  party  from  a 
contract  on  the  ground  that  he  was  drunk  when  it  was  entered  into 
unless  his  condition  reached  that  degree  which  may  be  called  exces- 
sive drunkenness,  where  a  party  is  utterly  deprived  of  reason  and 
understanding.     This,  in  our  view,  is  the  true  rule.     As  much  as  we 


CRIMES   BY   DRUNKEN   PERSONS.  $99 

may  desire  to  discourage  drunkenness,  and  deplorable  as  the  habit 
of  drinking,  with  its  train  of  wrecks  and  ruin,  may  be,  we  must  still 
recognize  the  frailty  of  human  beings,  and  adapt  the  law  to  the 
actual  condition  of  the  party. 

In  PigmahW  State,  supra,  it  is  said:  "  The  older  writers  regarded 
drunkenness  as  an  aggravation  of  the  offence  and  excluded  it  for  any 
purpose.  It  is  a  high  crime  against  one's  self,  and  offensive  to  society 
and  good  morals;  yet  every  man  knows  that  acts  may  be  committed 
in  a  fit  of  into.xication  which  would  be  abhorred  in  sober  moments. 
And  it  seems  strange  that  any  one  should  ever  have  imagined  that  a 
person  who  committed  an  act  from  the  effect  of  drink,  which  he  would 
not  have  done  if  sober,  is  worse  than  the  man  who  commits  it  from 
sober  and  deliberate  intent.  The  law  regards  an  act  done  in  sudden 
heat,  in  a  moment  of  frenzy,  when  passion  has  dethroned  reason,  as 
less  criminal  than  the  same  act  when  performed  in  the  cool  and 
undisturbed  possession  of  all  the  faculties.  There  is  nothing  the 
law  so  abhors  as  the  cool,  deliberate,  and  settled  purpose  to  do  mis- 
chief. That  is  a  quality  of  a  demon;  whilst  that  which  is  done  on 
great  excitement,  as  when  the  mind  is  broken  up  by  poison  or  intoxi- 
cation, although,  to  be  punished,  may  to  some  extent  be  softened 
and  set  down  to  the  infirmities  of  human  nature.  Hence,  fiot 
regarding  it  as  an  aggravation,  drunkenness,  as  anything  else  show- 
ing the  state  of  mind  or  degree  of  knowledge,  should  go  to  the  jury. 
Upon  this  principle,  in  modern  cases,  it  has  been  permitted  to  be 
shown  that  the  accused  was  drunk  when  he  perpetrated  the  crime  of 
killing,  to  rebut  the  idea  that  it  was  done  in  a  cool  and  deliberate 
state  of  the  mind  necessary  to  constitute  murder  in  the  first  degree. 
The  principle  is  undoubtedly  right.  So,  on  a  charge  of  passing  coun- 
terfeit money;  if  the  person  is  so  drunk  that  he  actually  did  not 
know  that  he  passed  a  bill  that  was  counterfeit,  he  is  not  guilty.  It 
oftentimes  requires  much  skill  to  detect  a  counterfeit.  The  crime  of 
passing  counterfeit  money  consists  of  knowingly  passing  it.  To 
rebut  that  knowledge,  or  to  enable  the  jury  to  judge  rightly  of  the 
matter,  it  is  competent  for  the  person  charged  to  show  that  he  was 
drunk  at  the  time  he  passed  the  bill.  It  is  a  circumstance,  among 
others,  entitled  to  its  just  weight." 

If  he  was  so  drunk  as  to  be  deprived  of  reason  and  understanding, 
that  is  a  fact  for  the  jury  to  consider  with  the  other  facts  proved,  in 
determining  the  guilt  or  innocence  of  accused.  The  judgment  is 
reversed,  and  the  cause  remanded  for  further  proceedings. 

Reversed  and  remanded. 

The  other  judges  concur. 


6cX)  •  DRUNKENNESS. 

PEOPLE  V.  WALKER. 
38  Mich.    156. —  1878. 

CooLEY,  J.  The  defendant  was  convicted  in  the  court  below  for 
the  larceny  of  a  sum  of  money  from  one  Martin.  All  the  evidence  in 
the  case  tended  to  show  that  if  the  defendant  took  the  money  wrong- 
fully, it  was  while  he  was  under  the  influence  of  liquor,  and  some  of 
it  indicated  that  he  was  very  drunk. 

The  circuit  judge  was  requested  to  charge  the  jury,  that  "  even  if 
the  jury  should  believe  that  the  defendant  was  intoxicated  to  such 
an  extent  as  to  make  him  unconscious  of  what  he  was  doing  at  the 
time  of  the  commission  of  the  alleged  offence,  it  is  no  excuse  for 
him,  and  they  should  not  take  it  into  consideration.  A  man  who 
voluntarily  puts  himself  in  condition  to  have  no  control  of  his  actions, 
must  be  held  to  intend  the  consequences."  This  charge  was  given 
in  reliance  upon  the  general  principle  that  drunkenness  is  no  ex- 
cuse for  crime. 

While  it  is  true  that  drunkenness  cannot  excuse  crime,  it  is  equally 
true  that  when  a  certain  intent  is  a  necessary  element  in  a  crime,  the 
crime  cannot  have  been  committed  when  the  intent  did  not  exist. 
In  larceny  the  crime  does  not  consist  in  the  wrongful  taking  of  the 
property,  for  that  might  be  a  mere  trespass;  but  it  consists  in  the 
wrongful  taking  with  a  felonious  intent;  and  if  the  defendant,  for 
any  reason  whatever,  indulged  no  such  intent,  the  crime  cannot 
have  been  committed.  This  was  fully  explained  by  Mr.  Justice 
Christiancy  in  Roberts  -v.  People,  19  Mich.  401,  and  is  familiar  law. 
See  also  Nichols  v.  State,  8  Ohio  (N.  S.)  435;  Regina  v.  Moore, 
3C.  &K.  319. 

This  instruction  being  erroneous,  the  conviction  must  be  set  aside. 


Peckham,  J.,  IN  PEOPLE  V.  LEONARDL 
143  N.  Y.  360,  364.— 1894. 

At  common  law  drunkenness  was  not  only  not  an  excuse  for  crime, 
.but  evidence  of  intoxication,  while  admissible,  and  to  be  considered 
in  some  cases,  was  yet  generally  of  no  avail.  If  a  man  made  himself 
voluntarily  drunk  it  was  no  excuse  for  any  crime  he  might  commit 
while  he  was  so,  and  he  had  to  take  the  responsibility  of  his  own 
voluntary  act.  If  the  assault  were  unprovoked,  the  fact  of  intoxi- 
cation  would   not  be  allowed   to  affect  the   legal  character  of    the 


CRIMES   BY  DRUNKEN    PERSONS.  6oi 

crime.  The  fact  of  inloxication  was  not  to  be  permitted  to  be  even 
considered  by  the  jury  upon  the  question  of  premeditation.  Th^se 
principles  are  stated  in  many  cases  in  this  court.  People  v.  Rogers,  i8 
N.  Y.  9;  Kenny  v.  People,  31  Id.  330;  Flanigan  v.  The  People,  86  Id.  554. 

The  strict  rule  of  the  common  law  has,  however,  been  slightly 
relaxed  by  our  Penal  Code,  the  twenty-second  section  of  which  reads 
as  follows: 

"  No  act  committed  by  a  person  while  in  a  state  of  voluntary 
intoxication  shall  be  deemed  less  criminal  by  reason  of  his  having 
been  in  such  condition.  But  whenever  the  actual  existence  of  any 
particular  purpose,  motive  or  intent  is  a  necessary  element  to  con- 
stitute a  particular  species  or  degree  of  crime,  the  jury  may  take 
into  consideration  the  fact  that  the  accused  was  intoxicated  at  the 
time  in  determining  the  purpose,  motive  or  intent  with  which  he 
committed  the  act." 

Under  this  section  it  has  been  held  by  this  court  that  it  is 
not  proper  to  charge  the  jury  that  the  mere  fact  of  intoxication  is 
necessarily  evidence  even  tending  to  show  an  absence  of  premedita- 
tion and  deliberation.  Such  fact,  the  court  said,  might  tend  in  some 
cases  to  show  absence,  while  in  others  it  might  not.  We  held  that 
it  was  now  simply  the  duty  of  the  judge  to  leave  it  to  the  jury  to  take 
into  consideration  the  question  of  intoxication  determining  the 
motive  or  intent  of  the  accused,  and  whether  he  acted  with  delibera- 
tion and  premeditation.  People  v.  Mills,  98  N.  Y.  176.  We  do  not 
think  that  under  this  statute  the  intoxication  need  be  to  such  an 
extent  as  to  necessarily  and  actually  preclude  the  defendant  from 
forming  an  intent  or  from  being  actuated  by  a  motive  before  the 
jury  would  have  the  right  to  regard  it  as  having  any  legal  effect  upon 
the  character  of  the  defendant's  act.  Any  intoxication,  the  statute 
says,  may  be  considered  by  the  jury,  and  the  decision  as  to  its  effect 
rests  with  them.  That  a  man  may  be  even  grossly  intoxicated  and 
yet  be  capable  of  forming  an  intent  to  kill  or  do  any  other  criminal  act 
is  indisputable,  and  if,  while  so  intoxicated,  he  forms  an  intent  to 
kill  and  carries  it  out  with  premeditation  and  deliberation,  he  is 
without  doubt,  guilty  of  murder  in  the  first  degree,  and  the  jury 
should,  when  such  a  defence  is  interposed,  be  so  instructed.  It  is  a 
most  important  and  far-reaching  statute  in  its  possible  effects,  and 
the  jury  ought  to  be  warned  that  where  the  criminal  act  is  fairly  and 
clearly  proved,  the  fact  of  intoxication  as  furnishing  evidence  of  the 
want  of  the  criminal  intent  which  the  proof  might  otherwise  show, 
should  be  considered  by  it  with  the  greatest  care,  caution  and  cir- 
cumspection, and  such  fact  ought  not  to  be  allowed  to  alter  the 
character  or  grade  of  the  criminal  act  unless  they  have  a  fair  and 


6o2  DRl'NKENNESS. 

reasonable  doubt  of  the  existence  of  the  necessary  criminal  purpose 
or  intent  after  a  consideration  of  such  evidence  of  intoxication. 
The  safety  of  society  depends  to  a  large  extent  upon  the  due  admin- 
istration of  our  criminal  law,  and  the  voluntary  intoxication  of  an 
accused  person  should  be  most  cautiously  considered  before  arriving 
at  a  conclusion  that  it  has  in  any  way  altered  the  character  or  grade 
of  a  criminal  act.  It  ought  always  to  be  borne  in  mind  that  by  the 
terms  of  the  very  statute  cited  no  act  committed  by  a  person  while 
in  a  state  of  voluntary  intoxication  shall  be  deemed  less  criminal  by 
reason  of  his  having  been  in  such  condition.  In  other  words,  it 
should  still  be  remembered  that  voluntary  drunkenness  is  never  an 
excuse  for  crmie.  In  People  v.  Fish,  (125  N.  Y.  136),  it  was  held 
that  under  this  section  of  the  Penal  Code,  if  the  accused  be  sober 
enough  to  and  do  form  an  intent  and  so  deliberate  upon  and  pre- 
meditate the  crime,  then  he  is  responsible  the  same  as  if  he  had  been 
perfectly  sober,  and  that  he  is  guilty  even  though  intoxicated.  By 
our  statute  deliberation  and  premeditation  are  necessary  constituents 
of  the  crime  of  murder  i  i  the  first  degree,  and  if  by  reason  of  intoxi- 
cation the  jury  should  be  of  opinion  that  the  deliberation  or  premedi- 
tation necessary  to  constitute  murder  in  the  first  degree  did  not 
exist,  the  crime  is  reduced  to  a  lower  grade  of  murder,  or  in  the 
absence  of  any  intent  to  kill,  then  to  manslaughter  in  some  of  its 
grades.  The  intoxication  need  not  be  to  the  extent  of  depriving  the 
accused  of  all  power  of  volition  or  of  all  ability  to  form  an  intent. 
The  jury  should  be  instructed  that  if  the  intoxication  had  extended 
so  far  in  its  effects  that  the  necessary  intent,  deliberation  and  pre- 
meditation were  absent,  the  fact  of  such  intoxication  must  be  con- 
sidered and  a  verdict  rendered  in  accordance  therewith.  In  the 
portion  of  the  charge  of  the  learned  judge  which  has  been  above  set 
forth  we  fear  that  he  required  evidence  of  the  existence  of  too  great 
a  degree  of  intoxication  before  the  jury  were  permitted  to  find  the 
absence  of  the  necessary  intent  or  degree  of  deliberation  or  premedi- 
tation. I  have  endeavored  to  state  what  the  rule  is  in  such  cases. 
******** 

In  this  case  the  error  in  the  charge  was  of  the  most  vital  nature, 
and  although  possibly  it  may  be  open  to  the  claim  that  it  was  given 
with  reference  to  the  question  as  to  what  amount  of  intoxication 
formed  an  excuse  to  the  defendant,  yet  we  are  fearful  that  the  jury 
may  have  been  misled  and  may  have  thought  that  the  language 
appertained  to  the  subject  of  considering  the  extent  of  the  intoxica- 
tion of  the  defendant  with  reference  to   the  intent  with  which  he 

struck  the  blows. 

#»****** 


PART  VI. 

ALIENS. 

Alien  Friends} 

I.   PRorERTY  Rights. 

GREENHELD  v.  MORRISON. 

21     Ia.     538. 1866. 

Cole,  J.  The  only  question  made  by  the  demurrer  is  as  to  the 
right  and  capacity  of  a  non-resident  alien  to  take  a  distributive  share 
of  an  intestate's  estate  in  this  state.  No  question  need  arise  in  the 
determination  of  this  cr.se,  as  to  the  construction  of  the  act  of  1858 
(Rev.  sees.  2488  to  2493),  since,  so  far  as  that  act  relates  to  personal 
property,  it  is  probably  only  declarative  of  the  common  law. 

At  the  common  law,  aliens  were  capable  of  acquiring,  holding  and 
transmitting  movable  property  in  like  manner  as  our  own  citizens, 
and  they  can  bring  suits  for  the  recovery  of  that  property.  2  Kent's 
Com.  62.  Aliens  are  not  deprived  of  any  of  these  rights  by  our 
statutes.  The  provision  of  our  statute  (Rev.  sec.  2422),  which  provides 
that  personal  property  "  shall  be  distributed  to  the  same  persons 
and  in  the  same  proportion  as  though  it  were  real  estate,"  does  not 
prevent  aliens  from  taking  distributive  shares  of  personal  estate, 
although  non-resident  aliens  might  not  take  real  estate  by  descent. 

Our  statute  provides  (Rev.  sec.  2436),  that  the  real  estate  of  a 
decedent,  subject  to  dower,  etc.,  "  shall  descend  in  equal  shares  to 
his  children."  Yet  if  any  of  his  children  are  non-resident  aliens  (aside 
from  some  other  statute  on  the  subject),  such  non-resident  alien 
children  would  not  take  any  portion,  for  that  he  would  have  no 
inheritable  blood.  In  other  words,  both  these  sections,  like  all  other 
statutes,  are  construed,  in  the  light  of  and  with  reference  to  the 
common  law  relating  to  the  same  subject-matter. 

Affirmed. 

'  As  to  the  limitation,  independent  of  statutory  or  constitutional  provision, 
upon  the  capacity  of  an  alien  to  hold  public  office,  see  State  v.  Smith,  14  Wis.  497; 
State  V.  Murray,  28  Id.  96. 

[603] 


6o4  .\lii:ns. 

Judge,  J.,  ix  HARLEY  v.  THE  STATE. 
40  Ala.  6.S9,  695. —  1867. 

Under  the  demurrer  interposed  in  the  court  below,  the  follow- 
ing allegations  of  one  of  the  jileas  are  to  be  taken  as  true:  ist,  that 
Harley  purchased  the  lands  described  in  the  information,  on  tlu- 
2d  day  of  April,  1857,  and  that  there  was  a  conveyance  to  him  of 
the  title  on  that  day;  2d,  that,  at  the  time  of  the  said  conveyance, 
Harley  was  an  unnaturalized  alien,  but  that  previously  thereto  he 
had  filed  his  declaration  of  intention  to  become  a  citizen  of  the 
United  States,  and  was  duly  admitted  to  such  citizenship  on  the 
ist  of  November,  i860,  by  the  judgment  of  the  Circuit  Court  of 
Cook  county,  in  the  state  of  Illinois.  These  allegations  present 
the  merits  of  the  main  question  involved,  which  we  proceed  to 
consider. 

An  alien  may  acquire  lands  by  purchase,  but  not  by  descent;  and 
there  is  no  distinction,  whether  the  purchase  be  by  grant  or  by 
devise;  in  either  event,  the  estate  vests  in  the  alien  as  a  defeasible 
estate,  subject  to  escheat  at  the  suit  of  the  government.  He  has 
complete  dominion  over  the  estate  of  which  he  is  thus  seized,  until 
office  found;  may  hold  it  against  every  one,  even  against  the  gov- 
ernment, and  may  convey  it  to  a  purchaser  —  that  is  to  say,  may  con- 
vey a  defeasible  estate  only,  subject  to  be  divested  on  office  found. 
The  ancient  rule  of  the  common  law  was,  that  an  alien  could  not 
maintain  a  real  action  for  the  recovery  of  lands,  but  he  might,  in 
such  action,  defend  his  title  against  all  persons  but  the  sovereign. 
It  has  been  held,  however,  in  North  Carolina,  if  not  in  other  states 
of  the  Union,  that  he  may  maintain  ejectment.  The  common  law 
was,  also,  that  the  king  could  not  grant  lands  forfeited  by  alienage, 
until  he  was  in  possession  by  office  found;  but,  when  the  alien  died, 
the  sovereign  was  seized  without  office  found,  because,  otherwise,  the 
freehold  would  be  in  abeyance,  as  the  alien  could  have  no  inheritable 
blood. 

As  to  grants  for  the  cause  of  alienage,  by  state  legislation,  without 
an  inquest  of  office.  Judge  Story  has  said,  "  That  an  inquest  of  office 
should  be  made  in  cases  of  alienage  is  a  useful  and  important 
restraint  upon  public  proceedings.  It  protects  individuals  from 
being  harassed  by  numerous  suits,  introduced  by  litigious  grantees. 
It  enables  the  owner  to  contest  the  question  of  alienage  directly,  by 
a  traverse  of  the  office.  It  affords  an  opportunity  for  the  public  to 
know  the  nature,  the  value,  and  the  extent,  of  its  acquisitions 
^ro   defectu    hcertdis.     And,    above    all,    it    operates    as  a    salutary 


ALIEN    FRIENDS.  605 

suppression  of  that  corrupt  influence  which  the  avarice  of  specula- 
tion might  otherwise  urge  upon  the  legislature.  The  common  law, 
therefore,  ought  not  to  be  deemed  repealed,  unless  the  language  of 
a  statute  be  clear  and  explicit  for  this  purpose."  Fairfax's  Devisee 
V.  Hunter's  Lessee,  7  Cranch,  603.  But  each  state  has  the  undoubted 
right  to  enact  laws  regulating  the  descent  of,  and  succession  to, 
property  within  its  limits,  and  consequently  to  permit  inheritance 
by  or  from  an  alien. 

We  refer  to  the  following  authorities,  as  sustaining  the  propositions 
of  law  hereinbefore  announced:  2  Kent,  62-64;  Fairfax' s  Devisee 
V.  Hunter's  Lessee,  7  Cranch,  603;  Orr\.  Hodgson,  4  Wheaton,  453; 
Governeur  s  Heirs  v.  Robertson,  11  Wheaton,  332;  Scanlan  v.  WrigJit^ 
13  Pick.  532;  Montgomery  \.  Dorian,  7  New  Hamp.  475;  People  \k 
Folsom,  5  Cal.  373;  RoucheN.  Williamson,  3  Iredell,  141;  Waugh  v. 
Riley,  8  Metcalf  (Mass.)  290;  Wilbur  y.  Tobey,  16  Pick.  177;  Ethe7-idge 
V.  Malefnpre,  18  Ala.  565. 

When  Harley  purchased  the  land  in  controversy,  and  during  the 
period  of  his  alienage  thereafter,  he  was  seized  of  a  defeasible  estate 
in  the  premises,  accompanied  with  all  the  incidents  of  ownership  of 
such  an  estate.  During  the  same  period,  the  only  right  which  the 
state  could  have  in  the  premises  was  the  right  to  have  the  land 
escheated,  by  a  judicial  proceeding  in  the  nature  of  an  inquest  of 
office.  This  prerogative  right  of  sovereignty  was  not  asserted  during 
the  period  of  Harley's  alienage;  but  he  was  permitted  to  retain  his 
estate,  without  molestation,  until  he  had  been  admitted  to  full 
citizenship.  This  result  effected  an  extinguishment  of  the  right  of 
the  state  to  escheat  the  land,  if  such  right  existed,  and  perfected 
the  title  of  Harley.  As  Sir  Matthew  Hale  has  said,  "  The  law  is 
very  gentle  in  the  construction  of  the  disability  of  alienism,  and 
rather  contracts  than  extends  its  severity."  2  Kent,  56-62.  See 
also  Jackson  v.  Beach,  i  Johnson's  Cases,  399;  White  v.  White, 
2  Met.  (Ky.)  189. 

Foreigners  are  admitted  to  the  rights  of  citizenship  with  us,  on 
liberal  terms;  and  the  public  policy  of  the  United  States,  in  regard 
to  their  becoming  citizens,  as  shown  by  the  naturalization  laws  of 
the  government,  is  certainly  in  harmony  with  the  main  conclusion 
attained  in  the  present  case.     2  Kent's  Com.  56.     *     *     * 

Judgment  reversed  and  cause  remanded. 


6o6  ALIENS. 

Wilde,  J.,  in  WAUGH  v.  RILEY. 

8  Met.  (Mass.)  290,  294. —  1^44. 

It  was  objected  that  Riley,  the  mortagor,  was  an  alien,  and  that, 
by  the  deed  of  conveyance  to  him,  the  estate  immediately  vested  in 
the  commonwealth;  he  being  incapable  of  taking  and  holding  real 
estate.  But  the  doctrine  is  very  clearly  established,  by  numerous 
authorities,  that  an  alien  may  take  a  freehold,  and  hold  it  until  office 
found.  It  is  true  that,  by  the  strictness  of  the  common  law,  it  has 
been  held  that  an  alien  cannot  maintain  an  action  for  the  recovery 
of  possession  of  real  estate.  But  in  all  the  cases  in  which  this  doc- 
trine is  maintained  it  is  held  that  he  may  take  and  hold  real  estate 
until  office  found,  and  that  he  may  hold  it  against  all  the  world  ex- 
cept the  government.  So  that  an  alien  may  defend,  but  he  cannot 
prosecute,  in  a  real  action. 

It  is  justly  remarked  by  Savage,  C.  J.,  in  Bradstreet  v.  Supervisors 
of  0?ieida  County,  13  Wend.  548,  that  "  it  seems  strange  that  any 
person  who,  by  our  laws,  may  take  real  estate,  and  hold  it  against 
all  the  world  except  the  government,  should  not  be  at  liberty  to 
prosecute  for  the  recovery  of  possession."  However  this  may  be, 
it  is  unquestionable  that  an  alien  may  take  and  hold  real  estate 
against  every  person,  until  office  found,  and  may  convey  his  right 
and  title  to  a  purchaser.  The  question  whether  an  alien  can  prose- 
cute for  the  recovery  of  possession  of  real  estate  does  not  arise  in 
this  case.  But  it  was  decided,  in  the  case  in  13  Wend,  above  cited, 
that  notwithstanding  the  ancient  rigor  of  the  common  law,  as  laid 
down  in  sundry  cases,  such  an  action  might  be  maintained;  and  the 
reasons  given  by  Chief  Justice  Savage,  in  support  of  the  decision, 
are  very  cogent 

REESE  V.  WATERS. 

4  Watts  &  S.  (Pa.)  145.— 1842. 

This  was  an  action  of  ejectment  by  David  Reese  against  Humphrey 
Waters  and  Achsa,  his  wife,  for  a  tract  of  land  containing  fifty-one 
acres. 

It  appeared  that  Achsa  Snodgrass  was  seized  in  fee  of  the  land 
in  dispute,  and  was  married  to  Humphrey  Waters,  who  was  an  alien. 
David  Reese,  the  plaintiff,  obtained  a  judgment  against  Humphrey 
Waters,  upon  which  an  execution  was  issued  and  levied  on  the  land, 
upon  which  an  inquisition  was  held,  by  which  it  was  extended  and 
valued  at  $100  per  annum.     A  liberari  facias  was  issued,  and  returned 


ALIEN   FRIENDS.  607 

"Possession  delivered  to  the  plaintiff."  Whereupon  this  action  of 
ejectment  was  brought,  and  the  question  raised  on  the  trial  was  — 
whether,  by  the  law  of  Pennsylvania,  an  alien  acquires  any  title  in 
his  wife's  estate  of    inheritance,  as  tenant  by  the  curtesy  initiate. 

Upon  the  trial,  the  court  directed  a  verdict  for  the  plaintiff,  reserv- 
ing the  point:  it  was  then  argued  before  their  honors,  Judges  Gricr 
and  Shaler,  and  the  former  delivered  the  opinion  of  the  court  upon  the 
reserved  point,  and  directed  a  judgment  for  the  defendant  7ion  obstante 
veredicto. 

Per  curiam.  Our  act  of  1833  has  dispensed  with  the  birth  of  issue 
as  a  constituent  of  tenancy  by  the  curtesy;  and  had  the  husband,  in 
this  instance,  been  an  American  citizen,  he  would  have  been  tenant 
by  the  curtesy  initiate  by  force  of  the  marriage  alone,  and  seized  of 
a  freehold  in  his  own  right.  The  cause,  then,  is  without  difficulty 
so  far  as  it  depends  on  the  common  law,  which  forbids  an  alien  to 
take  by  purchase  for  the  benefit  of  any  one  but  the  crown  or  the 
commonwealth,  or  to  take  at  all,  where  the  estate  would  devolve 
on  him  by  operation  of  law.  It  has  been  expressly  decided  that  an 
alien  cannot  be  tenant  by  the  curtesy,  and  the  disability  which  pre- 
vents him  from  being  seized  in  his  own  right  would  equally  prevent 
him  from  being  seized,  in  right  of  his  wife,  of  her  freehold,  whether 
of  inheritance  or  not  of  inheritance.     *     *     * 

Judgment  affirmed.' 

'  "  It  is  suggested  that  without  office  found  the  estate  would  descend  to  the 
heir.  But  the  law  is,  that  if  an  alien  purchase  land,  or  if  land  be  devised  to  him, 
'he  may  take  and  hold  until  an  inquest  of  office  ;  but  upon  his  death  the  land 
would  instantly  and  of  necessity  (as  the  freehold  cannot  be  kept  in  abeyance), 
without  any  inquest  of  office,  escheat  and  vest  in  the  State,  because  he  is  incompe- 
tent to  transmit  by  hereditary  descent.  See  the  cases  cited,  2  Kent's  Com.  S-j. 
If,  therefore,  John  Lawyer  was  incapable  (on  account  of  alienage)  of  holding 
real  estate  in  Pennsylvania,  and  of  transmitting  it  to  alien  heirs,  his  estate 
escheated  to  the  commonwealth  on  his  death  without  inquestof  office;  it  became 
vested  in  the  Commonwealth,  and  they  had  power  to  transfer  it  by  act  of  the 
legislature  to  the  widow,  who  took  it  subject  to  the  rights  of  others  by  the  express 
saving  in  the  act.  When  the  legislature,  therefore,  by  the  act  of  the  25th  of 
February,  1814,  granted  to  Anna  Maria  Lawyer,  the  wife  of  the  deceased,  the 
interest  which  they  had  by  escheat,  they  passed  the  estate  accruing  to  them  by 
the  alienage  of  the  heirs." — Sergeant,  J.,  in  Rubeckv.  Gardner,  7  Watts  (Pa.) 

455,  458. 

At  common  law  a  devise  by  an  alien  vested  his  defeasible  title  in  the  devisee. 
See  Schouler  on  Wills  (2d  ed.),  v^§  34,  35. 


6o8  ALIENS. 

Magruder,  J.,  IN  WUNDERLE  7-.   WUNDERLE. 

144  III.  40,  53.— 1893. 

It  is  a  general  rule  of  the  common  law,  that  the  title  to  real  prop- 
erty must  be  acquired  and  passed  according  to  the  lex  ret  sitcB.  This 
rule  not  only  applies  to  alienations  and  acquisitions  made  by  the  acts 
of  the  parties,  but  also  to  estates  and  rights  acquired  by  operation  of 
law.  The  descent  and  heirship  of  real  estate  are  governed  by  the 
law  of  the  country  where  it  is  located.  Story  on  Confl.  of  Laws, 
sees.  424,  448,  483,  509;  Stoltz  V.  Doerifig,  112  111.  234.  This  princi- 
ple, originally  applicable  as  between  countries  entirely  foreign  to 
each  other,  also  prevails  as  among  the  states  of  the  American  Union, 
From  It  results  the  doctrine,  that  the  title  of  aliens  to  land  within  the 
limits  of  the  several  states  is  matter  of  state  regulation.  Williams 
on  Real  Property  (4th  ed.)  page  64,  note  i;  Lawrence's  Wheaton 
on  Inteiuiational  Law,  page  168  n. ;  Story  on  Confl.  of  Laws,  sec. 
430;  Wheaton's  Int.  Law  (Boyd,  3d  ed.)  page  132;  2  Wharton's 
Inter.  Law  Dig.,  bottom  pages  490  and  497;  Field's  Inter.  Code,  (2d 
ed.)  page  176.  But  while  it  is  true  that  "  the  right  of  foreigners  to 
hold  title  to  real  estate  is  entirely  dependent  on  the  laws  of  the  state 
in  which  the  land  is  situate,"  (2  Wharton's  Int.  Law  Dig.  sec.  201, 
page  490),  it  is  also  true,  that  the  state  law  must  give  way  if  it  con- 
flicts with  any  existing  treaty  between  the  government  of  the  United 
States  and  the  goverment  of  the  country  of  which  such  foreigner  is 
a  subject  or  citizen. 

Article  6  of  the  Federal  Constitution  provides  that  "  all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the  United 
States  shall  be  the  supreme  law  of  the  land,  and  the  judges  in  every 
state  shall  be  bound  thereby,  anything  in  the  Constitution  or  laws  of 
any  state  to  the  contrary  notwithstanding."  In  construing  this 
article  it  has  been  held,  that  provisions  in  regard  to  the  transfer, 
devise  or  inheritance  of  property  are  fitting  subjects  of  negotiation 
and  regulation  by  the  treaty-making  power  of  the  United  States, 
and  that  a  treaty  will  control  or  suspend  the  statutes  of  the  individual 
states  whenever  it  differs  from  them.  Hence,  if  the  citizen  or  sub- 
ject of  a  foreign  government  is  disqualified  under  the  laws  of  a  state 
from  taking,  holding  or  transferring  real  property,  such  disqualifica- 
tion will  be  removed,  if  a  treaty  between  the  United  States  and  such 
foreign  goverment  confers  the  right  to  take,  hold  or  transfer  real 
property.  Hauenstein  v.  Lynhatn,  100  U.  S.  483;  Geofroy  v.  Riggs, 
133  U.  S.  258;  Ware\.  Hylton,  3  Dall.  199;  Chirac  \.  Chirac,  2  Wheat. 
259;  Orr\.  Hodgson,  4  Wheat.  453;  Fairfax  v.   Hunter,   7   Cranch, 


ALIEN  FRIENDS.  609 

603;  The  People  v.  Gerke,  5  Cal.  381.  But  the  treaty  which  will 
suspend  or  override  the  statute  of  a  state,  must  be  a  treaty  between 
the  United  States  and  the  government  of  the  particular  country,  of 
which  the  alien  claiming  to  be  relieved  of  the  disability  imposed  by 
the  state  law,  is  a  citizen  or  subject.  A  treaty  with  some  other 
country,  of  which  such  alien  is  not  a  citizen  or  subject,  cannot  have 
the  effect  of  removing  the  disability  complained  of. 


2.  Capacity  to  Sue  and  Be  Sued. 

Lord  Esher,  M.  R.,  in  MIGHELL  v.  SULTAN   OF 

JOHORE. 

[1894.J  I  Q.  B.  149,  157.  (Eng.) 

For  the  purposes  of  my  judgnlent  I  must  assume  that  the  Sultan  of 
Johore  came  to  this  country  and  took  the  name  of  Albert  Baker,  and 
that  the  plaintiff  believed  that  his  name  was  Albert  Baker,  and  I  will 
go  so  far  as  to  assume  for  the  present  purpose  that  he  deceived  her 
by  pretending  to  be  Albert  Baker,  and  then  promised  to  marry  her, 
and  that  he  broke  his  promise.  Whether  these  matters  could  be 
proved,  if  the  case  went  further,  is  entirely  another  matter;  but  at 
the  present  stage  of  the  case  I  will  assume  them  to  be  true.  At 
length,  wh«n  he  is  sued,  he  alleges  that  he  is  a  sovereign  prince, 
and  that  no  action  can  be  maintained  against  him  in  the  municipal 
courts  of  this  country  for  anything  which  he  has  done.  An  elaborate 
argument  has  been  presented  to  us  on  behalf  of  the  plaintiff  which 
was  not  altogether  new,  for  I  remember  to  have  heard  something 
very  like  it  in  the  case  of  The  Parlement  Beige.  5  P.  D.  197.  In 
this  argument  there  was  only  one  point  which  appeared  to  have 
much  weight,  viz.,  that  very  great  judges  in  the  House  of  Lords  and 
in  the  Queen's  Bench  had  formerly  declined  to  determine  the  prin- 
ciple point  now  raised.  If  the  matter  had  stood  there,  I  should 
have  thought  that  it  might  be  necessary  for  us  to  look  into  all  the 
authorities  on  the  subject.  But  I  think  that  we  did  so  in  the  case 
of  The  Parlement  Beige.,  and  that  the  point  in  this  case  is  not  now 
before  the  Court  of  Appeal  for  the  first  time,  but  was  really  decided 
in  that  case,  which  decision  would,  of  course,  be  binding  on  us  in 
the  present  case,  even  if  any  of  us  did  not  agree  with  it. 

The  first  point  taken  was  that  it  was  not  sufficiently  shown  that 

the  defendant  was  an  independent  sovereign  power.     There  was  a 

letter  written  on  behalf  of  the  Secretary  of  State  for  the  Colonies, 

on  paper  bearing  the  stamp  of  the  Colonial  Office,  and  which  clearly 

[Domestic  Relations  —  39.] 


6h$  ALIENS. 

Came  Irom  the  Secretary  of  State  for  the  Colonies  in  his  official 
c^haracter.  He  is  in  colonial  matters  the  adviser  of  the  Queen,  and 
1  think  the  letter  has  the  same  effect  for  the  present  purpose  as  a 
communication  from  the  Queen.  It  was  argued  that  the  judge 
ought  not  to  have  been  satisfied  with  that  letter,  but  to  have 
informed  himself  from  historical  and  other  sources  as  to  the  status 
of  the  Sultan  of  Johore.  It  was  said  that  Sir  Robert  Phillimore  did 
so  in  the  case  of  the  Charkieh.  Law  Rep.  4  A.  &  E.  59.  I  know 
he  did,  but  I  am  of  opinion  that  he  ought  not  to  have  done  so; 
that,  when  once  there  is  the  authoritative  certificate  of  the  Queen 
through  her  minister  of  state  as  to  the  status  of  another  sovereign, 
that  irt  the  courts  of  this  country  is  decisive.  Therefore  this  letter 
is  conclusive  that  the  defendant  is  an  independent  sovereign.  For 
this  purpose  all  sovereigns  are  equal.  The  independent  sovereign 
of  the  smallest  state  stands  on  the  same  footing  as  the  monarch  of 
ihtf  greatest. 

It  being  established  that  the  defendant  is  in  that  position,  can  he 
be' sued  in  the  courts  of  this  country?  It  is  not  contended  that  he 
could,  unless  by  coming  into  this  country,  and  living  there  under  a 
false  name,  and  —  I  will  assume  for  the  present  pilrpose  —  by  so 
deceiving  the  plaintiff,  he  has  lost  the  privilege  as  an  independent 
sovereign  and  made  himself  subject  to  the  jurisdiction.  In  the  cas^ 
of  The  ParlemtTit  Beige  the  whole  subject  was  carefully  considered: 
As  I  have  pointed  out,  great  judges  in  the  House  of  Lords  and  the 
Queen's  Bench  had  in  previous  cases  declined  to  decide  this  pointy 
but  I  think  that  this  court  was  there  called  upon  to  decide  the 
point,  and  did  decide  it.  I  said,  in  giving  the  judgment  of  the  court 
in 'that  case,  after  citing  passages  from  various  authorities,  and  a 
minute  examination  of  the  cases  on  the  subject  (see  p.  214  of  the 
report),  "The  principle  to  be  deduced  from  all  these  cases. is  that, 
as  a  consequence  of  the  absolute  independence  of  every  sovereign 
authority,  and  of  the  international  comity  which  induces  every 
sovereign  state  to  respect  the  independence  and  dignity  of  every 
'other  sovereign  state,  each  and  every  one  declines  to  exercise  by 
means  of  its  courts  any  of  its  territorial  jurisdiction  over  the  person 
bf  any  sovereign  or  ambassador  of  any  other  state,  or  over  the  public 
property  of  any  state  which  is  destined  to  public  use,  or  over  the  prop- 
erty of  any  ambassador,  though  such  sovereign,  ambassador,  or 
property  be  within  its  territory,  and,  therefore,  but  for  the  common 
agreement,  subject  to  its  jurisdiction."  It  appears  to  me  that,  by 
the  authority  of  this  court,  the  rule  was  thus  laid  down  abs(jlutely 
and  without  qualification.  We  had  not  then  to  deal  with  the  ques- 
tion of  a  foreign  sovereign  submitting  to  the  jurisdiction;  everybody 


ALIEN    FRIENDS.  6l  I 

knows  and  understands  that  a  foreign  sovereign  may  do  that.  But 
the  question  is,  How?  What  is  the  time  at  which  he  can  be  said  to 
elect  whether  he  will  submit  to  the  jurisdiction?  Obviously;  as  it 
;ippears  to  me,  it  is  when  the  court  is  about  or  is  being  asked  to 
^^xercise  jurisdiction  over  him,  and  not  any  previous  time.  Although 
up  to  that  time  he  has  perfectly  concealed  the  fact  that  he  is  a 
sovereign,  and  has  acted  as  a  private  individual,  yet  it  is  only  when 
the  time  comes  that  the  court  is  asked  to  exercise  jurisdiction  over 
him  that  he  can  elect  whether  he  will  submit  to  the  jurisdiction.  If  it 
is  then  shown  that  he  is  an  independent  sovereign,  and  does  not 
submit  to  the  jurisdiction,  the  court  has  no  jurisdiction  over  hi:n. 
It  follows  from  this  that  there  can  be  no  inquiry  by  the  court  into 
his  conduct  prior  to  that  date.  The  only  question  is  whether,  when 
the  matter  comes  before  the  court,  and  it  is  shown  that  the  defend- 
ant is  an  independent  sovereign,  he  then  elects  to  submit  to  the 
jurisdiction.  If  he  does  not,  the  court  has  no  jurisdiction.  It 
appears  to  me  that  this  is  the  result  of  the  principles  laid  down  in 
Xho.  Parle ment  Beige.  Therefore,  I  think  the  court  has  no  jurisdic- 
tion to  enter  into  any  inquiry  into  the  matters  alleged  by  the  plain- 
tiff, the  defendant  being  an  independent  sovereign,  and  not  submit- 
ting himself  to  the  jurisdiction.  For  these  reasons  the  appeal  must 
be  dismissed.' 


ROBERTS  V.  KNIGHTS. 

7  Allen  (Mass  )  449. —  1863. 

.  Contract  brought  in  the  Police  Court  of  Bostoa  by  the  plaintiff, 
who  is  a  British  subject,  against  the  master  of  a  British  vessel,  who 
is  also  a  British  subject.  The  defendant  objected,  in  the  Police 
Court,  that  the  court  had  no  jurisdiction,  and  a  hearing  was  there- 
upon had  upon  all  the  questions,  involved,  and  the,  case  was  dis- 
missed, and  the  plaintiff  appealed  to  the  Superior  Court. 

■'  Chapman,  J.  The  question  now  presented  is,  whether  our  courts 
dre  bound  to  take  jurisdiction  of  this  case,  both  the  parties  being 
aliens,  and  having  only  a  transient  residence  within  the  common- 
wealth. 

The  Gen.  Sts.  do  not  settle  the  question.  Not  much  light  is 
thrown  upon  it  by  c.  123,  sec.  i,  cited  by  the  plaintiff's  counsel, 
which  provides  that,  if  neither  party  lives  in  the  state,  a  transitorv 
action  may  be  brought  in  any  county.     Nor  have  we  been  able  to 

'  A  foreign  sovereign  may  sue  in  an  American  State  court.  King  of  Prussia 
V.  Kiieppers  Admr,  22  Mo.  550. 


6l3  ALIENS. 

find  any  prm'isions  in  any  of  our  treaties  with  Great  Britain  which 
give  us  any  aid.  The  question  whether  the  courts  of  a  country  ought 
to  take  jurisdiction  of  litigation  between  aliens,  temporarily  residing 
within  its  limits,  is  primarily  one  of  the  international  law. 

Vattel,  b.  2,  c.  8,  sec.  103,  says  that  by  the  law  of  nations,  dis- 
putes that  may  arise  between  strangers,  or  between  a  stranger  and  a 
citizen,  ought  to  be  terminated  by  the  judge  of  the  place,  and  also 
by  the  laws  of  the  place.  In  2  Kent's  Com.  (6th  ed.),  64,  this 
authority  is  cited,  and  the  law  is  stated  to  be  that  if  strangers  are 
involved  in  disputes  with  our  citizens,  or  with  each  other,  they  are 
amenable  to  the  ordinary  tribunals  of  the  country.  No  distinction 
is  made  between  transient  and  permanent  residents. 

In  1650  our  colonial  legislature  passed  an  act,  reciting  that 
"  whereas  oftentimes  it  comes  to  pass  that  strangers  coming  amongst 
us  have  sudden  occasions  to  try  actions  of  several  natures  in  our 
courts  of  justice,"  the  right  is  therefore  given  to  them.  3  Col.  Rec. 
202.  See,  also,  Anc.  Chart.  91.  In  1672  another  act  was  passed, 
confirming  and  regulating  the  right.  4  Col.  Rec.  part  2,  532.  See, 
also,  Anc.  Chart.  192.  These  acts  make  no  exception  of  cases  of 
transient  residence,  and  they  established  our  municipal  law  at  a  very 
early  date. 

In  Barn//  v.  Benjamin^  15  Mass.  354,  it  was  objected  that  the 
defendant,  whose  domicil  was  in  Demerara,  being  transiently  here, 
was  was  not  liable  to  be  sued  in  our  courts  by  the  plaintiff,  whose 
domicil  was  in  Connecticut,  and  who  was  also  transiently  here.  The 
precise  question  which  arises  in  the  present  case  was  not  before  the 
court,  but  the  reasoning  of  Parker,  C.  J.,  goes  to  sustain  the  mar- 
ginal note  of  the  case,  which  is  as  follows:  "  It  seems  that  one 
foreigner  may  sue  another  who  is  transiently  within  the  limits  of 
this  state,  upon  a  contract  made  between  them  in  a  foreign  country. " 

lx\Judd\.  Lawrence,  i  Cush.  531,  it  was  held  that  an  alien  resi- 
dent within  the  commonwealth  is  entitled  to  the  benefit  of  the  insol- 
vent laws.  Since  St.  1852,  c.  29,  aliens  have  been  able  to  take, 
hold  and  transmit  real  estate.  It  seems,  therefore,  to  be  the  policy 
of  modern  times  to  enlarge  rather  than  diminish  the  rights  and 
privileges  of  aliens. 

The  courts  of  the  United  States  have  not  jurisdiction  where  both 
parties  are  aliens,  because  this  is  not  one  of  the  enumerated  cases  in 
which  jurisdiction  is  given  to  them.  Barrel!  v.  Benjamin,  ubi  su^ra; 
Turner  v.  Bank  of  North  America,  4  Dall.  11 ;  Hodgson  v.  Bo^verbank, 
5  Cranch,  303. 

The  argument  ah  inconvenienti,  which  is  urged  on  behalf  of  the 
defendant,  has  much  force.     It  is  extremely  inconvenient  to  one  who 


ALIEN    ENEMIES.  613 

s  temporarily  in  a  foreign  country  to  be  sued  by  a  fellow  country- 
man in  its  courts.  But  it  is  met  by  an  argument  of  equal  force  on 
the  other  side.  If  the  plaintiff  had  no  such  remedy,  he  would  often 
be  subjected  to  great  hardships;  on  the  whole,  it  is  consonant  to 
natural  right  and  justice  that  the  courts  of  every  civilized  country 
should  be  open  to  hear  the  causes  of  all  parties  who  may  be  resident 
for  the  time  being  within  its  limits. 

The  defendant  relied  upon  a  clause  in  the  Merchant's  Shipping 
Act  (17  &  18  Vict.  c.  104,)  which  provides  that,  in  a  contract  like 
that  of  the  plaintiff,  no  seaman  shall  sue  for  wages  in  any  court 
abroad,  except  in  cases  of  discharge  or  of  danger  to  life. 

But  this  act  cannot  affect  the  question  of  jurisdiction,  which  on 
the  motion  to  dismiss,  is  the  only  question  to  be  considered. 


Alien  Enemies. 

I.  Contracts  with  Alien  Enemy. 

KERSHAW  V.  KELSEY. 

100  Mass.  561. —  1868. 

Gray,  J.  The  defendant,  a  citizen  of  Massachusetts,  in  Febru- 
ary, 1864,  in  Mississippi,  took  from  the  plaintiff,  then  and  ever  since 
a  citizen  and  resident  of  Mississippi,  a  lease  for  one  year  of  a  cotton 
plantation  in  that  state,  and  therein  agreed  to  pay  a  rent  of  ten 
thousand  dollars,  half  in  cash,  and  half  "  out  of  the  first  part  of  the 
cotton  crop,  which  is  to  be  fitted  for  market  in  reasonable  time.'* 
The  lessor  also  agreed  to  deliver,  and  the  lessee  to  receive  and  pay 
the  value  of,  the  corn  then  on  the  plantation.  It  does  not  appear 
whether  the  defendant  went  into  Mississippi  before  or  after  the  be- 
ginning of  the  War  of  the  Rebellion ;  and  there  is  no  evidence  of  any 
intent  on  the  part  of  either  party  to  violate  or  evade  the  laws,  or  op- 
pose or  injure  the  government  of  the  United  States.  The  defendant 
paid  the  first  installment  of  rent,  took  possession  of  the  plantation 
and  corn,  used  the  corn  on  the  plantation,  provided  it  with  supplies 
to  the  amount  of  about  five  thousand  dollars,  and  planted  and  sowed 
it,  but  early  in  March  was  driven  away  by  rebel  soldiers,  and  never 
returned  to  the  plantation,  except  once  in  April  following,  after 
which  he  came  back  to  Massachusetts.  The  plaintiff  continued 
to  reside  on  the  plantation,  raised  a  crop  of  cotton  there,  and 
delivered   it  in  Mississippi  to  the  defendant's  son,  by  whom  it  Was 


6 14  ALIKNS. 

forwarded  in  the  autumn  of  the  same  year  to  the  defendant;  and 
he  sold  it  and  retained  the  profits,  amounting  to  nearly  ten  thousand 
dollars. 

The  plaintiff  sues  for  the  unpaid  instalment  (,f  rent,  and  the  value 
of  the  corn.  'I'he  claims  made  in  the  other  counts  of  the  declara- 
tion have  been  negatived  by  the  special  findings  of  f.se  jury. 

The  defendant,  in  his  answer,  denied  all  the  plaint:ft's  allegations; 
and  at  the  trial  contended  that  the  lease,  having  been  made  during 
the  civil  war,  was  illegal  and  void,  as  well  by  the  principles  of  inter- 
national law,  as  by  the  terms  of  the  act  of  Congress  o*"  j86i,  c.  3,  sec. 
5,  and  the  proclamations  issued  by  the  president  under  that  act,  de- 
claring "  all  commercial  intercourse  by  and  between  "  the  state  of 
Mississippi  and  other  states  in  which  the  insurrection  existed  "and 
the  citizens  thereof,  and  the  citizens  of  the  rest  of  the  Ijnited  States," 
to  be  unlawful,  so  long  as  such  condition  of  hostility  should  continue, 
and  that  "  all  goods  and  chattels,  wares  and  merchandise,"  coming 
from  such  states  into  other  parts  of  the  United  States,  or  proceed- 
ing to  such  states  by  land  or  water,  together  with  the  vessel  or 
vehicle  conveying  them,  or  conveying  persons  to  or  from  such 
states,  without  the  license  of  the  President,  should  be  forfeited  to 
the  United  States.      12  U.  S.  Sts.  at  Large,  257,  1262;  13  Id.  731. 

The  judge  presiding  at  the  trial  ruled  that  the  contracts  sued  on 
were  legal,  and  the  jury  having  returned  a  verdict  for  the  plaintiff, 
the  question  of  the  correctness  of  this  ruling  is  reported  for  our 
decision;  the  parties  agreeing  that,  if  the  ruling  was  correct,  the 
case  shall  be  sent  to  an  assessor;  but,  if  incorrect,  judgment  shall 
be  entered  for  the  defendant. 

This  case  presents  a  very  interesting  questicjn,  requiring  for  its 
decision  a  consideration  of  fundamental  principles  of  international 
law. 

\JIere  follows — //.  562-572  0/  the  official  report — a  review  of 
authorities. '\ 

The  result  is,  that  the  law*  of  nations,  as  judicially  declared,  pro- 
hibits all  intercourse  between  citizens  of  the  two  belligerents  which 
is  inconsistent  with  the  state  of  war  between  their  countries;  and 
that  this  includes  any  act  of  voluntary  submission  to  the  enemy,  or 
receiving  his  protection;  as  well  any  act  or  contract  which  tends 
to  increase  his  resources;  and  every  kind  of  trading  or  commercial 
dealing  or  intercourse,  whether  by  transmission  of  money  or  goods, 
or  orders  for  the  delivery  of  either,  between  the  two  countries, 
directly  or  indirectly,  or  through  the  intervention  of  third  persons 
or  partnerships,  or  by  contracts  in  any  form  looking  to  or  involving 
such  transmission,  or  by  insurances  upon  trade  with  or  by  the  enemy. 


ALIEN   ENEMIES.  615 

Beyond  theprinciple  of  these  cases  the  prohibition  has  not  been  car- 
ried by  judicial  decision.  The  more  sweeping  statements  in  the  text- 
books are  taken  from  the  dicta  which  we  have  already  examined,  and 
in  none  of  them  is  any  other  example  given  than  those  just  men- 
tioned. At  this  age  of  the  world,  when  all  the  tendencies  of  the  law 
of  nations  are  to  exempt  individuals  and  private  contracts  from  injury 
or  restraint  in  consequence  of  war  between  their  governments,  we 
are  not  disposed  to  declare  such  contracts  unlawful  as  have  not 
been  heretofore  adjudged  to  be  inconsistent  with  a  state  of  war. 

The  trading  or  transmission  of  property  or  money  which  is  pro- 
hibited by  international  law  is  from  or  to  one  of  the  countries  at  war. 
An  alien  enemy  residing  in  this  country  may  contract  and  sue  like  a 
citizen.  2  Kent's  Com.  dT^.  When  a  creditor,  although  a  subject 
of  the  enemy,  remains  in  the  country  of  the  debtor,  or  has  a  known 
agent  there  authorized  to  receive  the  amount  of  the  debt,  through- 
out the  war,  payment  there  to  such  creditor  q^i^  his  agent  can  in  no 
respect  be  construed  into  a  violation  of  ,the,4wties  imposed  by  a 
state  of  war  upon  the  debtor;  it  is  not  made  to  an  enemy,  in  con- 
templation of  international  or  municipal  law;  and  it  is  no  objection 
that  the  agent  may  possibly  remit  the  money  to  his  principal  in  the 
enemy's  country;  if  he  should  do  so,  the  offence  would  be  imputable 
to  him,  and  not  to  the  person  paying  him  the  money.  Cojin.  v. 
Penn,  Pet.  C.  C.  496;  Denniston  v.  Imbrie,  3  Wash.  C.  C.  396;  Ward 
v.  Smith,  7  Wall.  447;  Buchanan  v.  Curry,  19  Johns.  137.  The 
same  reasons  cover  an  agreement  made  in  the  enemy's  territory  to 
pay  money  there  out  of  funds  accruing  there  and  not  agreed  to  be 
transmitted  from  within  our  own  territory;  for,  as  was  said  by  the 
Supreme  Court  of  New  York  in  the  case  last  cited,  "  the  rule  is 
founded  in  public  policy,  which  forbids,  during  war,  that  money  or 
other  resources  shall  be  transferred  so  as  to  aid  or  strengthen  our 
enemies.  The  crime  consists  in  exporting  the  money  or  property,  or 
placing  it  in  the  power  of  the  enemy." 

Public  international  law,  being  the  rule  which  governs  the  inter- 
course of  one  nation  and  its  subjects  with  other  nations  and  their 
subjects,  is  ordinarily  limited,  so  far  as  rights  of  property  and  con- 
tracts are  concerned,  to  movable,  or,  in  the  phrase  of  the  common 
law,  personal  property,  which  is  in  its  nature  capable  of  being  car- 
ried or  transmitted  from  one  country  to  the  other;  and  does  not 
usually  touch  private  interests  in  immovable  property  or  real  estate; 
although  any  government  may  doubtless,  by  express  law  or  edictj 
appropriate  or  confiscate  for  its  own  benefit  the  use,  the  profits,  or 
even  the  title,  of  land  within  its  own  territory  or  occupation,  belong- 
ing to  subjects  of. the  enemy.   ,jg^j]?]iillimore's  International  Law, 


6t6  ALIENS. 

^35)  73';  AVtv/ V.  AVf-y,  I  Munf.  619;  Smith  V.  Maryland,  t  Cranch. 
286;  Fairfax  V.  HunUr,  7  Cranch.  622,  623,  631;  Union  Insurance 
Co.  V.  United  States,  6  Wall.  759.  The  title  of  aliens  in  real  estate 
is  usually  left  to  be  regulated  by  the  municipal  law,  and,  under  our 
system  of  government,  by  the  laws  of  the  several  states,  except  so 
far  as  controlled  by  treaties  with  foreign  powers.  Chirac  v.  Chirac, 
2  Wheat.  259;  Sprattw  Spratt,  i  Pet.  343;  s.  c,  4  Pet.  393;  Bona- 
parte v.  Catnden  &>  Amhoy  Railroad  Co.,  Bald.  205;  Montgomery  v. 
Dorian,  7  N.  H.  475;  2  Kent's  Com.  70,  71. 

By  the  common  law,  as  declared  by  the  American  courts,  an  alien 
may  take  land  by  purchase,  either  by  grant  or  by  devise,  and  hold 
or  convey  the  title,  or  in  times  of  peace  recover  it  by  suit,  subject  in 
either  case  to  be  divested  by  inquest  of  office.     Fairfax  v.  Hunter, 

7  Cranch.   603;   Craig  v.  Radford,    3   Wheat.  594;  Doe  v.   Robertson, 

11  Wheat.   332;  Sheaffe  v.    O'Neil,    i   Mass.    256;    Fox  v.    Southack, 

12  Mass.  143;    Wilbur  v.  Tobey,  16   Pick.   179,  180;    Waugh  v.  Riley, 

8  Met.  290;  2  Kent's  Com.  61.  It  would  seem  to  be  a  necessary 
corollary  from  this,  and  such  is  the  better  opinion,  that  he  may, 
unless  restrained  by  statute,  take  and  hold  a  lease  of  real  estate,  at 
least  until  office  found.  Co.  Lit.  2  b  and  Hargrave's  notes;  2  Kent's 
Com.  61,  62. 

In  regard  to  real  estate  there  is  no  difference  between  an  alien  friend 
and  an  alien  enemy,  except  that  the  latter  cannot  maintain  an  action 
to  recover  it  while  the  war  lasts,  and  that  it  maybe  confiscated  by  an 
extraordinarv  act  of  the  government.  In  the  great  case  of  Hunter  v. 
Fairfax,  i  Munf.  218,  and  7  Cranch.  603,  better  known  as  Martin  v. 
Hunter,  i  Wheat.  304,  the  highest  courts  of  Virginia  and  of  the 
United  States,  though  they  differed  upon  the  questions  whether  the 
latter  had  jurisdiction  of  the  case,  and  whether  there  had  been  pro- 
ceedings equivalent  to  an  inquest  of  office,  were  in  accord  upon  this 
point;  and  it  was  adniitted  in  the  Court  of  Appeals  of  Virginia,  and 
adjudged  by  the  Supreme  Court  of  the  United  States,  that  a  British 
subject,  being  an  alien  enemy,  could  take  lands  by  devise  from  a 
citizen  during  the  revolutionary  war.  In  the  Court  of  Appeals, 
Judge  Fleming  said:  "  I  believe  it  is  not,  or  ought  not,  to  be  con- 
troverted at  this  day,  that  an  alien  may  take  land  within  the  corn- 
monwealth  by  purchase,  as  well  by  devise  as  by  grant  or  other 
conveyance,  and  hold  the  same  until  something  further  be  done  t<» 
divest  him  of  his  right,  to  wit,  office  found."  i  Munf.  233.  And 
Judge  Roane  said:  "  The  right  of  the  commonwealth  to  lands  pur- 
chased by  an  alien  is  an  ordinary  right  derived  from  the  common 
law.  It  exists  at  all  times.  It  is  independent  of,  and  does  not  arise 
out  of  a  state  of  war."     It  results  from  a  mere  municipal  regula- 


ALIEN    ENEMIES.  617 

tion.  It  accrues  not  because  the  person  purchasing  is  an  enemy, 
but  because  he  is  an  alien.  It  is  not  a  right  pointed  against  the 
subjects  of  a  particular  power  with  whom  we  may  chance  to  be  at 
war,  but  against  the  subjects  of  all  foreign  nations  whatsoever." 
Id.  226,  618.  Mr.  Justice  Story,  in  delivering  the  opinion  of  the 
majority  of  the  Supreme  Court  of  the  United  States,  stated  the  law 
upon  this  point  thus:  "It  is  clear  by  the  common  law,  that  an 
alien  can  take  lands  by  purchase,  though  not  by  descent;  or,  in 
other  words,  he  cannot  take  by  the  act  of  law,  but  he  may  by  the 
act  of  the  party.  This  principle  has  been  settled  in  the  Year  Books, 
.and  has  been  uniformly  recognized  as  sound  law  from  that  time. 
Nor  is  there  any  distinction  whether  the  purchase  be  by  grant  or 
devise.  In  either  case  the  estate  vests  in  the  alien ;  not  for  his  own 
benefit,  but  for  the  benefit  of  the  state;  or,  in  the  language  of  the 
ancient  law,  the  alien  has  the  capacity  to  take,  but  not  to  hold  lands, 
and  they  may  be  seized  into  the  hands  of  the  sovereign.  But  until 
the  lands  are  so  seized,  the  alien  has  complete  dominion  over  the 
same."  "  We  do  not  find  that,  in  respect  to  these  general  rights 
and  disabilities,  there  is  any  admitted  difference  between  alien 
friends  and  alien  enemies.  During  the  war,  the  property  of  alien 
enemies  is  subject  to  confiscation  jure  belli^  and  their  civil  capacity 
to  sue  is  suspended.  But  as  to  capacity  to  purchase,  no  case  has 
been  cited  in  which  it  has  been  denied."  "  Indeed,  the  common 
law  in  these  particulars  seems  to  coincide  with  the  jus  gentium.'* 
7  Cranch,  619,  620.  Mr.  Justice  Johnson  agreed  with  the  rest  of 
the  court  upon  this  question,  and  said,  "  The  disability  of  an  alien 
to  hold  real  estate  is  the  result  of  a  general  principle  of  the  common 
law,  and  was  in  no  wise  attached  to  the  individual  on  account  of  his 
conduct  in  the  revolutionary  struggle."  lb.  62S  et  se^.  And  the 
doctrine  that  an  alien  enemy  might  acquire  title  in  lands  by  purchase 
during  the  war  was  again  distinctly  recognized  and  affirmed  in  Craig 
V.  Radford,  3  Wheat.  594.  See,  also,  Jackson  v.  Clarke,  lb.  i,  and 
note;  SUphen  v.  Sivann,  9  Leigh,  414,  415;  Yeo  v.  Mercereau,  3  Har- 
rison, 397. 

In  a  civil  war,  it  is  well  settled  that  the  sovereign  has  belligerent 
as  -^tW  as  sovereign  rights  against  his  rebel  subjects,  and  may  exer- 
cise either  at  his  discretion.  Rose  v.  Himely,  4  Cranch,  272.  The 
Amy  Warwick,  2  Sprague,  123;  s.  c,  and  other  prize  cases,  2  Black, 
635;  Alexander  s  Cotton,  2  Wallace,  419.  The  act  of  congress  and 
the  proclamations  of  the  president  upon  which  the  defendant  relies 
in'  this  case  are  in  terms  limited  to  the  prohibition  of  commercial 
intercourse  and  the  conveyance  or  transmission  of  goods  and  mer- 
chandise between  the  territories  occupied  by  the  two  belligerents; 


6i8  ALIENS. 

and  thus  clearly  manifest  the  intention  of  the  government,  in  accords 
ance  with  what  we  have  seen  to  be  the  general  law  of  nations,  that 
commercial  intercourse,  and  commercial  intercourse  only,  should  be 
prohibited.  They  clearly  do  not  extend  to  agreements  made  in  the 
enemy's  territory  between  two  persons  being  tliere,  for  the  leasing 
of  real  estate  therein,  the  payment  of  rent  there  out  of  the  products 
of  the  land,  or  the  delivery  of  and  payment  for  personal  property 
alreadv  upon  the  demised  premises  and  to  be  used  thereon.  The 
scope  and  meaning  of  the  w'ords  may  be  illustrated  by  referring  to 
the  equivalent  words  in  that  article  of  the  Constitution  which  confers 
upon  congress  "  power  to  regulate  commerce  with  foreign  nations, 
and  among  the  several  states,"  which  describe,  as  Chief  Justice 
Marshall  says,  "  the  commercial  intercourse  between  nations  and 
parts  of  nations,  in  all  its  branches,"  and  "every  species  of  com- 
mercial intercourse  between  the  United  States  and  foreign  nations.' 
Gibbons  v.  Ogden,  9  Wheat.  190,  193.  No  one  would  contend  that 
congress,  under  the  power  to  regulate  commerce,  could  legislate 
about  conveyances  or  leases  of  land  or  the  transfer  of  money  or 
personal  property  within  a  state. 

The  lease  now  in  question  was  made  within  the  rebel  territory, 
where  both  parties  were  at  the  time,  and  would  seem  to  have  con- 
templated the  continued  residence  of  the  lessee  upon  the  demised 
premises  throughout  the  term;  the  rent  was  in  part  paid  on  the  spot, 
and  the  residue,  now  sued  for,  was  to  be  paid  out  of  the  produce  of 
the  land;  and  the  corn,  the  value  of  which  is  sought  to  be  recovered 
in  this  action,  was  delivered  and  used  thereon.  No  agreement 
appears  to  have  been  made  as  part  of  or  contemporaneously  with 
the  lease,  that  the  cotton  crop  should  be  transported,  or  the  rent 
sent  back,  across  the  line  between  the  belligerents;  and  no  contract 
or  communication  appears  to  have  been  made  across  that  line,  relat- 
ing to  the  lease,  the  delivery  of  possession  of  the  premises  or  of  the 
corn,  or  the  payment  of  the  rent  of  the  one  or  the  value  of  the  other. 
The  subsequent  forwarding  of  the  cotton  by  the  defendant's  son 
from  Mississippi  to  Massachusetts  may  have  been  unlawful;  but  that 
cannot  affect  the  validity  of  the  agreements  contained  in  the  lease. 
Neither  of  these  agreements  involved  or  contemplated  the  transmis- 
sion of  money  or  property,  or  other  communication,  between  the 
enemy's  territory  and  our  own.  We  are  therefore  unanimously  of 
opinion  that  they  did  not  contravene  the  law  of  nations  or  the  public 
acts  of  the  government,  even  if  the  plantation  was  within  the  enemy's 
lines;  and  that  the  plaintiff,  upon  the  case  reported,  is  entitled  to 
recover  the  unpaid  rent,  and  the  value  of  the  corn. 

We  need  not,  therefore,  consider  the  questions,  argued  at  the  bar, 


ALIEN   ENEMIES.  619 

upon  the  effect  of  the  military  occupation  of  a  portion  of  the  state 
of  Mississippi  by  the  national  forces,  or  of  the  license  to  the  plaintiff 
from  the  military  commander. 

Judgment  for  the  plaintiff;  case  referred  to  an  assessor 


2.  Capacity  to  Sue  and  Be  Sued. 

Alvey,  J.,  IN  DORSEY  V.  THOMPSON. 

37  Md.  25,  39.— 1872. 

iT^is  certainly  true  that  an  alien  enemy  is  incapable  of  suing  and 
maintaining  a  suit,  either  at  law  or  in  equity,  in  the  courts  of  the 
country  to  which  he  is  hostile,  during  the  state  of  hostilities;  but 
this  disability  is  personal  to  the  plaintiff,  and  is  designed  to  take 
from  the  enemies  of  the  government  the  benefit  of  its  courts.  Dau- 
bigneyv.  Davallon^  2  Anst.  462;  Sparenbiirgh  v.  Bannatyne,  i  Bos.  & 
Pul.  163;  Society,  etc.  v.  Wheeler,  2  Gall.  105;  i  Daniel,  Ch.  Pra.  and 
Plea,  58;  Story's  Eq.  Plea.  sec.  53.  There  may  be  auxiliary  reasons 
for  the  rule  founded  on  policy;  but  in  reference  to  this  judges  have 
not  agreed  in  opinion.  In  the  case  of  Sparetiburgh  v.  Bamiatyne,  i 
Bos.  &  Pul.  170,  Chief  Justice  Eyre,  in  speaking  of  the  ground  upon 
which  the  plea  of  alien  enemy  is  founded,  said:  "As  to  the 
ground  of  policy  which  has  been  taken  in  argument  for  the  defend- 
ant, namely,  that  a  benefit  would  result  to  the  enemy  from  the  plain- 
tiff's recovering,  it  is  a  policy,  perhaps  doubtful,  certainly  remote, 
and  which  I  do  not  hold  to  be  satisfactory.  I  take  the  true  ground 
upon  which  the  plea  of  alien  enemy  has  been  allowed  is,  that  a  man, 
professing  himself  hostile  to  this  country,  and  in  a  state  of  war  with 
it,  cannot  be  heard  if  he  sue  for  the  benefit  and  protection  of  our 
laws  in  the  courts  of  this  country.  We  do  not  allow  even  our  own 
subjects  to  demand  the  benefit  of  the  law  in  our  courts,  if  they 
refuse  to  submit  to  the  law  and  jurisdiction  of  our  courts.  Such 
is  the  case  of  an  outlaw."  The  plea  of  an  alien  enemy,  however,  is 
greatly  disfavored  by  the  courts,  and  all  presumptions  are  generally 
indulged  against  it;  (8  T.  Rep.  166;  2  Gall.  127);  and  where  the 
disability  of  alien  enemy  occurred  before  judgment,  and  to  a  scire 
facias  on  the  judgment  the  plaintiff's  disability  was  pleaded,  the 
plea  was  disallowed  because  it  had  not  been  availed  of  to  the  original 
action;  the  plaintiff  having  been  allowed  to  recover  judgment,  his 
disability  could  not  be  set  up  to  defeat  execution  on  it.  West  v. 
Sutton,  2  Ld.   Raym.   853.     The  defence  is  technical,   and  is  only 


620  ALIENS. 

allowed  when  formally  and  strictly  pleaded  to  the  maintenance  of 
the  suit.      I  Chit.  PI.  234. 

But  whether  the  ground  of  the  defence  of  alien  enemy  be  the  possi- 
ble benefit  that  might  result  to  the  enemy  from  allowing  the  plaintiff 
to  recover,  or  the  want  of  claim  or  right  to  the  use  of  the  courts  of 
the  country  by  the  plaintiff,  in  consequence  of  his  status  as  an  enemy, 
the  reason  that  creates  the  disability  of  the  party  as  plaintiff  does 
not  apply  to  him  as  defendant.  As  plaintiff,  the  party  attempts  to 
exercise  a  privilege  that  he  has  forfeited,  at  least  for  the  time;  but, 
as  defendant,  he  is  sought  to  be  made  amenable  for  what  justice 
may  require  of  him.  The  mode  and  manner  of  acquiring  jurisdiction, 
and  making  the  proceedings  binding  on  him,  is  another  and  different 
question  from  that  of  his  total  exemption  from  suit  pending  hostili- 
ties. This  depends'  upon  the  remedial  processes  of  the  courts;  and, 
as  is  well  known,  they  are  generally  inadequate  du/ing  a  state  of 
actual  war  in  suits  in  personam,  to  furnish  the  foundation  for  exer- 
cising jurisdiction  over  alien  enemies  residing  in  the  enemy's  terri- 
tory. But  still  these  enemies  are  liable  to  be  sued,  if  within  the 
reach  of  process. 

Indeed,  that  an  alien  enemy  is  liable  to  be  sued  in  the  courts  of  the 
hostile  country  would  seem  to  be  a  settled  principle  of  law.  It  has 
been  so  expressly  decided  by  this  court  in  the  case  of  Dorsey  v.  Kyle, 
30  Md.  512;  and  it  has  been  recently  so  decided  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  McVeigh  v.  U.  S.,  11  Wall. 
259,  267.  In  this  latter  case,  the  court  said:  "  Whatever  may  be 
the  extent  of  the  disability  of  an  alien  enemy  to  sue  in  the  courts  of 
the  hostile  country,  it  is  clear  that  he  is  liable  to  be  sued,  and  this 
carries  with  it  the  right  to  use  all  the  means  and  appliances  of 
defence."  Bacon's  Abr.,  tit.  Alien,  D.,  is  quoted  from,  in  which  it 
is  said  that  an  alien  enemy  may  be  sued  at  law,  and  may  have  pro- 
cess to  compel  the  appearance  of  his  witnesses.  See,  also,  Albretcht 
V.  Sassman,  2  Ves.  &  B.  323. 


INDEX. 


Adopted  child 

PAGE 

act  of  adoption 

374 

status 

365 

Adultery  in  divorce 

274 

Affirmance  of  infant's  contract, 

Set 

Ratification. 

Age  of  majority 

37g 

Age  to  marry 

37 

Agreement  to  separate 

no 

114 

Alien  enemy 

action  by  or  against 

619 

contract  with 

613 

Alien  friend 

action  by  or  against 

6oy 

property  rights 

603 

Alienation  of  affections 

of  husband 

219 

of  wife 

217 

Alimony 

298 

Ante-ouptial  contracts  of  wife 

78. 

103 

Ante-nuptial  torts  by  wife 

204 

Breach  of  promise,    See  CONTRACT 
TO  Marry. 

Chastisement 

of  child  349 

of  wife  201 

Chattels  personal,  of  wife  118 

Chattels  real,  of  wife  130 
Child.  See  Parent  and  Child 

Choses  in  action  of  wife  I2i 

Collusion  in  divorce  291 

Commission  in  lunacy  586 

Common-law  marriage  25 

Community  property  n.  145 

Condonation  in  divorce  287 

Connivance  in  divorce  289 
Consanguinity  affecting  marriage       49 

Contract,  marriage  as  a  311 
Contract  of  marriage,  See  Marriage 


Contract  to  marry 

rAGB 

action  in  tort  for  breach 

13 

illegal  consideration 

5 

induced  by  fraud 

14 

proof  of  contract 

I 

seduction  under 

10 

Statute  of  Frauds 

3 

survival  of  action  for  breach  10,  20 

when  promisor  already  married 

10,  13 

Contracts 

by  drunken  persons 

594 

by  infants 

309 

by  insane  persons 

521 

by  married  women 

78 

Conveyances 

between  husband  and  wife 

156 

by  insane  persons 

521 

Crimes 

as  between  husband  and  wife 

233 

as  ground  for  divorce 

286 

by  drunken  persons 

597 

by  infants 

5" 

by  insane  persons 

566 

by  married  women 

230 

Criminal  conversation                 223 

225 

Cruelty  as  ground  for  divorce 

276 

Curtesy,  estate  by                    146,  n 

198 

of  child 

326 

of  illegitimate  child 

362 

Damages  for  breach  of  proniise 

10 

Deeds  by  insane  persons 

521 

Desertion  as  ground  for  divorce 

283 

Disaffirmance,  See  INFANCY. 

Divorce 

adultery 

274 

alimony 

298 

collusion 

291 

condonation 

«87 

[621] 


622 


INDEX. 


Divorce  — continued 

PAGE 

connivance 

289 

cruelty 

276 

desertion 

283 

effect 

316 

evidence 

296 

imprisonment 

286 

jurisdiction 

240 

legislative 

304 

recrimination 

293 

remarriage 

321 

support  of  children  after 

339 

Domicile  of  wife 

199 

Dower                                         135, 

n.  198 

Drunken  persons 

contracts 

:    594 

Climes 

597 

torts 

596 

Duiess,  marriage  under 

''3 

Fraudulent    rcpreseniation   as   to     pace 
age  by  infant  495,  509 

Gifts  between  husband  and  wife        156 


Earnings 

of  chiLl  341 

of  step-ch.  d  376 

of  wife  163 

Education  of  chila  325 

Emancipation  of  ch>'  341 

Entirety,  estates  L^  151 

Equity  to  sert'.;;ment,  wife's  187 

Equity,  n- lie's  separate  estate  in  165 

Estate  by  the  curtesy               146,  «.  198 

Estate  by  the  entirety  151 

Estoppel  as  against  infants         505,  509 

to  deny  validity  of  divorce  267,  271 

Evidence 

in  divorce  actions  296 

of  contract  to  tnarry  i 

of  illegitimacy  360 
of  marriage  23-36 
capacity  of  husband  and  wife 

to  testify  235 

capacity  of  infants  to  testify  512 

capacity  of   insane  persons  to 

-^':       testify  562 

t.--  incjuisition  in  lunacy  as  586 


Fraud 

,  ■  '    in  contract  to  marry  14 

in  marriage  61 

Frauds,  Statute  of,  as  affecting  con- 
'   "tract  to  marry  3 


lusband  and  wife 

capacity  to  testify 

235 

crimes  as  betv/een 

233 

crimes  by  the  wife 

230 

chastisement  of  wife 

201 

gifts  and  conveyances  between 

156 

torts  as  between 

211 

torts  by  husband  and  wife 

209 

torts  to  the  husband  in  his  mari- 

tal relation 

214 

torts  to  the  wife 

206 

wife's  ante-nuptial  contracts 

78. 

103 

ante-nuptial  torts 

204 

chattels  personal 

n8 

chattels  real 

130 

choses  in  action 

121 

contracts  for  necessaries 

88 

crimes 

230 

devises  and  bequests 

161 

domicile 

199 

dower 

135 

earnings 

163 

■    equity  to  settlement 

187 

paraphernalia 

119 

post-nuptial  contracts 

,83. 

log 

post-nuptial  torts 

205 

real  property 

131 

separate  estate 

165 

179 

testamentary  capacity 

161 

wife  as  trustee 

197 

Illegal  consideration  in  contract  to 

marry  5 

Illegitimate  child 

custody  of  362 

legitimation  by  marriage  363 

proof  of  illegitimacy  360 

status  of  361 

Impotency  in  marriage  44 

Imprisonment  as  ground  for  divorce  286 

Infants 

appointment  of  agent  384 

avoidance  of  contracts 

after  minority  394 

during  minority  389 

effect  of  4T5 


INDEX. 


623 


Infants  —  continued  page 
avoidance  of  contracts 

in  part  409 

personal  privilege  411 

what  constitutes  405 

capacity  to  hold  office  515 

capacity  to  testify  512 

contracts  connected  with  torts    490 

crimes  5ti 
liability  for  wife's  ante-nuptial 

debts  519 

necessaries  468 

executory  contract  for  478 

-for  family  471 

money  loaned  for  481 

promissory  note  for  483 

quasi-contract  473 

what  are  474 

period  of  infancy             .  379 

ratificaiion  of  contracts 

.  r^overy  on  ratificid  prom-. 

i  .1-              ise                            .  .  463 

what  constitutes  .  452 

■y^  whether  with  knowledge      460 

testamentary  capacity  514  ': 

torts     ;.;.,-:•  488 

connected  with  contracts      490 

,jj           promissory  note  for  510 

5P.J  valid  contracts  465 

fi    voidability  of , contracts  ^  ,      380 

Inquisition  in  lunacy  586 
Insane  persons 

capacity  to  testify  582 

contracts  for  necessaries  547 

crimes  566 

incapacity  to  marry  44 

inquisition  in  lunacy  5S6 

mental  weakness  520 

testamentary  capacity  551 

torts  557 

voidability    of     contracts  and 

deeds  521 

Jurisdiction  in  divorce  240 

Legislative  divorce  304 

Legitimacy,  5^.?  ILLEGITIMATE  CHILD 
Lunacy,  See  Insane  Persons 

Marriage 

as  a  contract  311 

common  law  23 


Marriage  —  continued  t\ck 

''consanguinity  of  parties  49 
evidence  of                                    23-36 

in  jest  76 

induced  by  fraud  61 

legitimation  of  child  by  363 

mental  incapacity  of  party  44 

non-age  of  party  37 

per  verba  de  prtBsenti  28 

per  verba  de  futuro  30 

physical  incapacity  of  party  49 

prior  spouse  living  51 

remarriage  after  divorce  321 

solemnization  23 

under  duress  73 

See  also  Contract  to  Marry,  Hus- 
band and  Wife 

Married  woman,  See  HirsBAND  AND 
Wife,  Marriage 

Mental  incapacity,  See  Insane  Per- 
sons 

Minority,  See  Infants 

Necessaries 

infant's  contract  for  468 

insane  person's  contract  for  547 

liability  of  parent  for  child's  325 

wife's  contract  for  88 


Jmce  holder,  infant  as 

515 

Paraphernalia 

119 

=*arent  and  child 

chastisement  of  child 

349 

custody  of  child 

323 

earnings  of  child 

341 

education  of  child 

325 

emancipation  of  child 

341 

liability   of   parent   for   child's 

necessaries  325 

liability  of  parent  for  torts  by 

child  353 

property  of  child  347 

protection  of  child  325 

restraint  of  child  349 

support  of  child  325 

support  of  parent  by  child  333 

torts    as    between    parent    and 

child  350 

torts  by  the  child  353 

torts  to  child  355 

torts  to  parent  in  filial  relation   356 


634 


INDKX. 


St-f  also  AnoPTKD  Cim.L),  Ii.i.egiti- 

MATK  Child,  Strp-child  j.^ge 

Partnership,  infant's  avoidance  of  448 
I'ost-nuptial  contracts  of  wife      83,  109 

Post-nuptial  torts  of  wife  205 
Prior  marriage 

effect  on  contract  of  marriage  51 
effect  on  contract  to  marry       10,  13 
Promissory  note 

for  infant's  necessaries  483 

for  infant's  torts  510 

Protection  of  child  325 
Punishment,  5tv  CiiASTISEMENT 

yuasi-contract 

for  infant's  necessaries  473 

for  insane  person's  necessaries  547 


Ratification  of  infant's  contracts 

452 

Real  property  of  wife 

131 

Recrimination  in  divorce 

293 

Relationship  affecting  marriage 

49 

Restraint 

of  child 

349 

of  wife 

201 

Seduction  of  child  358 

Seduction  under  promise  of  marriage  10 
Separate  estate  of  wife  in  equity        165 
statutory  179 

Separation,  agreement  for  110,  114 

Settlement,  wife's  equity  to  187 

Solemnization  of  marriage  25 


I  Statute  of  Frauds,  whether  con-     »ac« 

I      tract  to  marry  is  within  3 

Step-child  376 
Support 

of  child  325 

of  parent  333 

of  step-child  376 

of  wife  8R 
Survival   of  action   for   breach   of 
promise                                              10,  20 

Torts 

between  husband  and  wife  211 

between  parent  and  child  350 

by  child,  liability  of  parent  353 

by  drunken  persons  596 

by  husband  and  wife  209 

by  infants  488 

by  insane  persons  557 

to  child  355 
to  husband  in  marital  relation    214 

to  parent  in  filial  relation  356 

to  wife  ao6 

wife's  ante-nuptial  204 

wife's  post-nuptial  305 

Wife,  See  Husband  and  Wi»b 

Wills 

by  infants  514 

by  insane  persons  551 

by  married  womea  161 


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